Mrs. Elizabeth N. Anyaebosi V. R.t. Briscoe (Nig.) Ltd. (1987)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

The parties to this case were originally the respondent (as plaintiff) and the late Innocent Ositadinma Anyaebosi (as defendant). The defendant (hereinafter referred to as “the deceased”) who was trading as “Ositadinma Trading Stores” applied by a letter dated 8th November, 1976, exhibit P1, to the plaintiff for appointment as a reseller of motors spare parts. The application was accepted by the plaintiff and the deceased was (as per exhibit P3) temporarily appointed as plaintiffs reseller for an initial period of 6 months.

A number of conditions were attached to the appointment; and one of these was that- PAYMENTS:- All purchases must be on cash basis or by a certified bankers cheque. Deliveries of spare-parts and accessories will only be effected when payment has been received by the Company (i.e. plaintiff) or when it has received confirmation that its bank account has been credited, unless special arrangement has been established and confirmed by the Company in writing.

It appears from the pleadings that the conditions contained in exhibits P3 were not strictly adhered to and were, by conduct, later varied by the parties. For example, the deceased’s appointment lasted up to October, 1978 instead of the 6 months given and payments to the plaintiff were not effected in the manner aforementioned. Now the plaintiff’s statement of claim, which is brief, reads thus-

1. The Plaintiff is a limited liability company registered under the laws of the Federal Republic of Nigeria and having offices throughout the Federation.
2. The Plaintiff among other things sells Vespa Motorcycles and their spare parts, Volvo cars and Toyota cars and their spare parts.
3. The Plaintiff upon the application of the defendant (i.e. deceased) dated 8th November, 1976 appointed the Defendant a reseller of its Toyota Spare Parts.
4. That as a result of the relationship between the Plaintiff and the Defendant referred to in paragraph 3 above, the Defendant between February and October, 1978 both months inclusive purchased on credit various spare parts to the tune of N60,935.10 and evidenced by various Invoices upon which the plaintiff shall rely at the trial of this suit.
5. That the Defendant kept account No. 534-121-0210 with the Plaintiff and the Plaintiff shall rely on the Defendant’s Statement of Account kept with the Plaintiff at the trial of this suit.
6. That towards liquidation of the sum outstanding on the account referred to in paragraph 5 above, the Defendant issued a Cooperative Bank of Eastern Nigeria cheque No. 8123668 dated 24th August, 1978 for the sum of N8,260.39 which cheque was dishonoured on presentation by the Plaintiff.
7. That the Defendant further issued three United Bank of Nigeria Limited, Idumagbo Branch, Lagos cheques dated 18th and 28th of September, 1978 for the sums of N1,899.70, N10,200.00 and N17,000.00 respectively in favour of the Plaintiff but which were dishonoured on presentation for payment by the Plaintiff. The Plaintiff gave notice to the Defendant that all the four cheques were dishonoured.
8. That the plaintiff and its Solicitors have made several repeated demands on the Defendant both personally and through correspondence but the Defendant has refused and or neglected to settle the outstanding account of N60,935. 10.
9. That the sum of N60,935.10 is owing and due from the Defendant to the Plaintiff.
10. That the Defendant has no defence to this action.
11. Whereof the Plaintiff claims against the Defendant the sum of N60,935.10 and interest at the rate of 10% up to the time of judgment and at 6% thereafter until judgment debt is fully paid.” Paragraphs 1 to 7 were admitted by the deceased in his statement of defence, wherein he averred that he paid the sum of N88,203.68 by personal cheques between the months of February and October in 1978. The deceased also alleged that various Receipts were given to him by the plaintiff in acknowledgement of the payments. Paragraphs 6,7,8,9,10 and 11 of the statement of defence read-

“6. In further answer to paragraphs 6 and 7 of the Statement of Claim the Defendant avers that when the said cheques for N8,260.39, N1,899.70, N10,200.00 and N17,000.00 were returned unpaid, the Defendant paid cash therefor whereupon the dishonoured cheques were returned to the Defendants.

7. The Defendant denied paragraph 8 of the Statement of Claim but admits that the Plaintiffs’ staff came on about three (3) occasions to demand payment of an alleged debt of N60,935.10.
8. The Defendant told the Plaintiffs’ staff that the said times they came to make the aforementioned demand as well as the Plaintiffs’ Mr. Onuoha that it is the Plaintiffs who are owing the Defendant and further demanded that a proper statement of the account of the dealings between the plaintiffs and the Defendant be made available to the Defendant but to no avail.
9. The Defendant denies paragraphs 9,10 and 11 of the Statement of Claim and states that he is not liable to the Plaintiff as alleged or at all.

COUNTER CLAIM

10. The Defendant repeats paragraphs 1 to 9 inclusive of the Statement of Defence.
11. By reason of the premises, the Defendant has suffered loss and damages.

PARTICULARS OF DAMAGE: Balance of the payment on account made by the Defendant to the Plaintiffs between February and October, 1978 i.e. N88,203.68 minus N60,935.10…=N27,268.58 And the Defendant counterclaims:1. Balance of payment on account … N27,268.58, 2.Damages, 3.Interests.”At the hearing before the trial Judge (Williams, J.), the plaintiff called only one witness – Mr. Edward Oladipo Aina, who was its Spare Parts Manager. The witness after testifying that the plaintiffs accounts were kept by computer, tendered a statement of account which the plaintiff kept in respect of its transactions with the deceased. The statement was admitted, without objection by the deceased’s counsel, as exhibit P4. This exhibit which is in a computer printed form was certified to be a true copy by one Chief T. Ola Odukoya, employed as Senior Accountant in the Respondent’s Motor Account Department. The exhibit was dated 31st December, 1980 and it showed a balance of N60,535.10 as outstanding against the deceased.The deceased gave evidence on his behalf. He denied owing the plaintiff the sum of N60,985.10 “between February, 1975 (sic) – October, 1978.” He tendered 10 receipts issued by the plaintiff in respect of the sum of N88,203.68 which he pleaded he paid to the plaintiff in 1978. These were admitted as exhibits “D-D9”. The deceased said that all the 4 cheques he issued to the plaintiff, which were dishonoured by his banks, were returned to him by the plaintiff and that he destroyed them. The photocopies of the cheques were earlier tendered in evidence by the plaintiffs witness and these were admitted as exhibits P5 to P8 inclusive. In support of his counter-claim, the deceased stated that he used to make payments to the plaintiff in advance so that the spare parts could be reserved for him to collect later. The deceased said that it was the difference between the sums of N88,203.68 and N60.935.10 claimed by the plaintiff that his Counter-claim was based on. In a considered judgment, the learned trial Judge found that although it was agreed in exhibit P3 that the deceased would make payments to the Plaintiff by cash or certified banker’s cheques, the deceased was allowed to issue his personal cheques for the payment of the purchases made by him. The learned trial Judge examined exhibits D to D9 and the entries in exhibit P4 and concluded as follows – “On the totality of the evidence, both oral and documentary, it is certainly not true that the defendant (i.e. deceased) paid cash to the plaintiff in respect of the dishonoured cheques. If he did, all those payments would have appeared on the statement of account, exhibits P4.The defendant said in his evidence that he paid cash for dishonoured cheques to one Mr. Onuorah, a Manager of the plaintiff who on such payment returned the dishonoured cheque to him. He even said half heartedly that he had such dealings with one Mr. Aina, another Manager of the plaintiff. If that were true, it would be the defendant’s duty to prove payment by calling credible evidence to prove payment because it is my opinion that in such a situation as this the burden of proof must shift to the defendant. He did not call such evidence. For these reasons I do believe and accept the statement of account between the parties and that the overall balance in that account is the amount which the defendant now owes the plaintiff. I find on the documentary and oral evidence as produced in this case that the plaintiff has proved its claim and is therefore entitled to judgment.(Italics mine)

With regard to the deceased’s counter-claim, the learned trial Judge said – “The defendant relied on the receipts Exhibits D – Exhibit D9 in proof of his counter-claim. His case was that the total sum on those receipts was more than the balance on the statement of account Exhibit P4. It has however been shown above that seven of ten receipts were shown in Exhibit P4 which meant that the amount shown on those seven receipts were duly received by the plaintiff. It is also clear on the evidence that the amounts on the 8 receipts Exhibit D7, Exhibit D8 and Exhibit D9 as tendered by the defendant were never received by the plaintiff because the cheques which he gave to the plaintiff for the sums on those three receipts were, on his admission, dishonoured. Furthermore the cheque Exhibit P5 which he admitted was not receipted was dishonoured by his bank. I have found that the defendant did not pay any cash for all his dishonoured cheques and since the defendant did not show any proof about the other payments which made up the other sums totalling N60,935.10 as claimed by the plaintiff,I find without any difficulty that the defendant’s counter-claim has not been proved, It should be dismissed and it is accordingly dismissed.(Italics mine)

In the result the learned trial Judge concluded his judgment as follows- “Judgment is hereby entered against the defendant and in favour of the plaintiff for the sum of N60, 935.10 with interest on the sum at the rate of 10% per annum from 30th March, 1981 up till today (i.e. 23rd April, 1982) and 6% per annum from today’s date until the judgment debt is fully paid.” The deceased appealed from the decision of the trial court to the Court of Appeal; but before the appeal could be heard by that Court, the deceased died on 27th April, 1982.

His widow, Mrs. Elizabeth N. Anyaebosi, applied to be substituted for the deceased on behalf of herself and the rest of the deceased’s family. She was accordingly substituted as the Appellant before the Court of Appeal. It was argued before the Court of Appeal that exhibit P4 was inadmissible at the trial because it was prepared in anticipation of the litigation brought by the plaintiff.

But the Court of Appeal (per Mohammed, J.C.A.) held-I have no hesitation in accepting that exhibit P4 was not made by a person interested in this proceedings and that the maker did not anticipate the litigation now pending in respect of the matter.” And on the contention that the deceased had paid to the plaintiff the sum of N88,203.68 as shown by exhibits D-D9, the learned Justice of the Court of Appeal said, before dismissing the appeal – “The learned trial judge considered all the receipts tendered by both parties and I am quite satisfied that he came to a correct conclusion that the overall balance in the statement of account is the amount which the appellant now owes the respondent.” In the further Appeal now before this Court, the appellant has, with the leave of the Court of Appeal, filed 12 grounds of appeal.

Most of these grounds raise questions of either facts or mixed law and facts, on which there had been concurrent findings of fact by the lower courts. The ease with which the Court of Appeal, though differently constituted, granted to the Appellant the leave to appeal is therefore alarming. I think it needs to be stressed again that this Court as well as the West African Court of Appeal laid down, in plethora of cases, the principle that when concurrent findings of facts are made by lower courts such findings will not be disturbed on further appeal to this court unless there are exceptional circumstances to justify doing so. See Kofi v. Kofi; 1 WACA 284; The Stool of Abinabina v. Chief Kojo Enyimadu, 12 WACA 171 at p. 173; Enang v. Adu; (1981) 11-12 SC.25 at 142; Okagbue v. Romaine, (1982) 5 S.C. 133 at p.170; Lokoyi v. Olojo, (1983) 8 S.C. 61 at 168; Ojomu v. Ajao, (1983) 9 S.C. 22 at 153; Overseas Construction (Nig.) Limited v. Creek Enterprises (Nigeria) Limited & Anor., (1985) 3 NWLR 407 at p. 413 and Onobruchere & Anor. v. Esegine & Anor., (1986) 1 NWLR 799 at p. 804.

No exceptional circumstance was prima facie shown by the appellant in his application to the Court of Appeal. The application was simply granted as a matter of course. This is obviously a negation of the principle which was repeatedly laid down in the cases cited above and ought to be deprecated. In Holman Bros. (Nigeria) Limited v. Kigo (Nig) Limited. & Anor., (1980) 8-11 S.C. 43 which approved the decision in Ex parte Gilchrist, In re Armstrong (1886-87) 17 Q.BD 521, Udoma, J.S.C. gave the following warning-

“On the other hand, care should always be taken so as not to give the impression that leave to appeal would be granted as a matter of course – a mere routine. “In order not to render the Constitutional requirement under Section 123(3) of the 1979 Constitution otiose, the warning ought to be heeded whenever application for leave to appeal is being considered by the Court of Appeal.