Ogwule Ankpa Agatu Co-operative Group Farming Society & Anor. V. Nigerian Agricultural and Co-operative Bank Limited & Anor. (1999)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

This is an appeal against the decision of the Benue State High Court sitting in Otukpo in suit No. OHC/5/92 wherein the appellants herein as plaintiffs sued the respondents as defendants claiming reliefs particularised in their writ and as formulated in paragraph 21 of their joint statement of claim as follows:

“21. Whereof the plaintiffs jointly and severally claim against the defendants jointly and severally the following reliefs to wit:

1(a) A declaration that the seizure of the plaintiffs’ tractor with Reg. No. BN 481 X by the 2nd defendant upon a purported instruction of the 1st defendant was illegal, null and void and ultra vires the defendants as the same was not done in accordance with the terms and spirit of the loan agreement.

(b) An order directing or compelling the defendants jointly and severally to return the plaintiffs’ tractor to them forthwith and in good and serviceable condition.

(c) An order setting aside or compelling the defendants to write-off as bad debt the accumulated interests and charges on the principal sum granted to the plaintiffs from the day the tractor was seized until judgment was delivered as the illegal seizure caused the plaintiffs not to honour their obligations within the material period.

(d) An order compelling the defendants to pay to the plaintiffs the sum of N6.000.00 monthly being the expected monthly income from the said tractor from the date of judgment until the judgment or orders of the court are fully satisfied by the defendants or until such a time the tractor is returned to the plaintiffs in good order.

2. And whereof the plaintiffs also claim against the defendants jointly and severally the sum of N200,000.00 (Two Hundred Thousand Naira) being special and general damages suffered by the plaintiffs as a result of the defendants’ actions or conducts.

Particulars of special and general damages

i. The sum of N144,800.00 (One Hundred and Forty Four Thousand and Eight Hundred Naira) being special damages (the sum of N800.00 collected by the 2nd defendant inclusive.)

ii. The sum of N55.200.00 (Fifty-Five Thousand and Two Hundred Naira) being general damages suffered by the defendants including the deceit practised on the plaintiffs by the 2nd defendant Grand Total: N200,000.00″

The case was tried on pleadings, to wit, the plaintiffs’ joint statement of claim and the defendants joint statement of defence. At the close of the plaintiffs’ case, the defendants resting their case on that of the plaintiffs made a no case submission. In his judgment delivered on 6th April, 1995, Tur J. dismissed the plaintiffs claims.

Dissatisfied by that judgment, the plaintiffs hereinafter referred to as the appellants appealed to this court based on two ground of appeal which read as follows:-

1. The learned trial Judge erred in law by failing to apply the provisions of section 139 of the Evidence Act 1990 to the facts of the case before him.

Particulars of error

1. Both parties agreed in their pleadings that there was a loan agreement between them. It was the defendants that pleaded in paragraph 11 of its statement of defence that it had right under the said agreement in addition to the mortgage properties to seize one movable property of the 1st plaintiff. The burden of proving the averment which defeats the case of the plaintiffs rests on the defendants. The learned trial Judge failed to place this burden on the defendants but proceeded to dismiss plaintiffs’ claim when the defendants made no attempt whatsoever to prove this averment.

The learned trial Judge erred in law when he dismissed the case of the plaintiffs instead of non-suiting the plaintiffs.

Particulars of error

1. Both parties agreed in their pleadings that there was a loan agreement between them that spell out their rights and obligations in the transaction. The evidence of the plaintiffs at the trial was to the effect that there was such an agreement but they failed to tender a copy of it.

There was no evidence before the learned trial Judge that all copies of the said judgment were lost or destroyed.

Apart from the failure to tender their own copy of the said agreement in evidence the case of the plaintiffs was not patently bad to merit a dismissal.”

Distilled from the above two grounds of appeal are two issues set out in the appellants’ brief of argument as follows:-

“1. Whether in a case like this where the defendants did not deny the existence of the loan agreement but merely pleaded in paragraphs 11 and 13 of their joint statement of defence that they had a right under the agreement to seize any moveable property of the 1st plaintiff/appellant, on whom did the burden of proof of such loan agreement lie.

2. Whether in all the circumstances of this case the learned trial Judge was right in dismissing the claim of the plaintiffs instead of non suiting them.”

In the respondents’ brief the two issues were framed differently thus: “1. Whether the lower court was right in dismissing the claim of the appellants for want of proof or for failing to discharge the burden of proof placed upon them by law.

2. Whether non-suit was the appropriate consequential order in the circumstances of this case where the plaintiffs have failed to prove their case to the standard required by law.”

Though the substance of the issues as formulated in the parties’ briefs are the same. I prefer the formulation in the respondents’ brief. The questions raised relate to burden of proof and non-suit. For a better appreciation of those issues it is pertinent to state albeit briefly the facts that gave rise to the proceedings leading to this appeal.

The 1st appellant is a co-operative society engaged in farming activities with its headquarters at Ogwule Ankpa Agatu while the 2nd appellant is its chairman.

The 1st respondent, a limited liability company is a bank that among other things grants loans and credit facilities to individual farmers; the 2nd appellant is its employee employed as a debt collector.

Sometime in the year 1981, the appellants applied to the 1st respondent for an agricultural loan to the tune of N105.000.00 (One Hundred and Five Thousand Naira). At that material time, one Paul Ikwulono now deceased was the chairman of the 1st appellant. One Bernard Omaize who guaranteed the loan mortgaged his landed property vide certificate of occupancy (Exh. B). The first disbursement of the loan took place on the 10th of December, 1981. The appellants’ case is that part of the agreement required that being a co-operative society the 1st appellant must purchase a tractor for purposes or farming for its members and non-members on hire for fee. Out of the N60.000.00 disbursed, the 1st appellant then bought a tractor registered as No BN 481 X (Exh C). It is the appellants’ case that the tractor was purchased from the loan disbursed to them by the 1st respondent. Due to the fact that the whole loan approved had not been disbursed the appellants operated under very difficult conditions but continued to repay the loan from the proceeds realised from hiring out the tractor at a fee. On or about 15th May, 1981, the 2nd respondent took away the tractor which was then functional on the pretext that he was going to repair it. On the demand by the appellants for the return of the tractor and after paying the sum of N800 said to be the cost of the repairs, the respondents refused to return the tractor unless the appellants repaid fully the loan granted to them. The gravamen of the appellants’ case is not necessarily that the respondents seized the tractor in question but that they did so without exhausting their remedies under the loan agreement as well as the terms of the mortgage. This is manifested in paragraph 17 of their joint statement of claim which read thus:

17. The plaintiffs will also state that in seizing or impounding the plaintiffs’ tractor aforesaid the defendants did not exhaust the terms or procedures in their terms of agreement nor did the defendants did (sic) anything to the loan guarantor herein before named …”

Implicit in paragraphs 11, 12 and 13 of their joint statement of defence is the respondents’ reply to the above averments. The aforesaid paragraphs read as follows:

“11. The defendants admit paragraph 10 of the claim only to a limited extent. In further answer to paragraph 10 of the claim the defendants state that in addition to the mortgage properties they retain the right to seize any moveable property of the 1st plaintiff in the event of the project being foreclosed.

12. The defendants contrary to paragraph 10 of the claim took steps to foreclose the mortgage before the seizure of the tractor.
13. The defendants admit paragraph 11 of the claim. In further answer to paragraph 11, the defendants state that in addition to the mortgaged property, the 1st defendant had the right to proceed against other properties of the 1st plaintiff upon foreclosure of the project.”

In his appraisal of the facts, the learned trial Judge after noting the provisions of section 132( 1) of the Evidence Act, 1990 which exclude parol evidence in proof of the contents of a document and the exception thereto in sub-section (3) which provides that oral evidence of a legal relationship is not excluded, opined at page 40 lines 25 to 35 as follows:

‘The question then is that once the legal relationship has been established and the plaintiff claims that the seizure was null and ultra-vires, the burden is on them to produce the original loan agreement or failing that to adduce secondary evidence, the burden will thus lie on the party that will fail if no more evidence was adduced. In this case, it is for the plaintiffs to prove that by the loan agreement, the seizure of the tractor which they said was bought from the first disbursement of N60,000 is ultra vires that agreement: see section 137(2) of the Evidence Act, 1990.”

Continuing on page 46, lines 15 to 19 of the record, he concluded:

“From all I have said, I hold that in the absence of the agreement entered into by the parties it is impossible to construe its terms and conditions. Accordingly, it is also not possible to grant the reliefs being claimed nor to resolve the matter’s in dispute.”‘

In the brief of argument, learned counsel for the appellants, L.E. Agbo Esq. stated that from the issues joined in the pleadings, the question of the 1st respondent giving a loan to the appellants evidenced in a loan agreement was not a live issue.

He further argued that what was really in dispute was the seizure of the tractor by the respondent which they claimed they had a right to seize. Learned counsel stated that by the state of the pleadings it was the respondents that pleaded that they had a right under the loan agreement to seize the tractors. He therefore submitted that the court below was wrong to have placed the burden of proof that the respondent had no right to seize the tractor under the loan agreement on the appellants. Counsel referred to the case of Foreign Finance Corporation v. Lagos State Government & 2 Ors (1991) 3 LRCN 855 at 886 and Onyemah & ors v. Amah & on (1988) 1 NWLR (Pt. 73) 772 to submit that he who asserts has the onus to prove what he asserts if he is to succeed and that the burden of proof is not static but shifts from one party to the other.

Responding to the above submission Omengala Paul Esq. learned counsel for the respondents contended that since the appellants have by their pleading challenged the power of the respondents to seize the tractor, the burden is on them the appellants to prove by credible evidence that the seizure of the tractor was ultra-vires the respondents in terms of the agreement and further more that since they failed to tender the loan agreement which defines the rights of the parties, it was not open to them to give oral evidence or plead the contents of the said agreement. The case of Chief Mrs. F Akintola v. Mrs. C.F.A.O. Solano (1986) 2 NWLR (Pt. 24) 589 at 620, Baba v. Nigerian Civil Aviation (1991) 5 NWLR (Pt.192) 388 (1991) 7 SCNJ 1 at 11 and section 132 of the Evidence Act, Cap, 112 Laws of the Federation 1990 were alluded to for the proposition that where any agreement has been reduced into the form of a document, no evidence may be given of the terms of such contract except the document itself.

The issue in controversy is whether the appellants or the respondents had the burden of producing the loan agreement allegedly made between the 1st appellant and the 1st respondent. It must be stressed that the phrase ‘burden of proof’ in civil cases has two distinct and frequently confused meaning. The first is the burden of proof as a matter of law and the pleadings, usually referred to as the legal burden or the burden of establishing a case. The second is the burden of proof in the sense of adducing evidence usually described as the evidential burden.

While the burden of proof in the first sense is always stable or static, the burden of proof in the second sense may oscillate constantly according as one scale of evidence or the other preponderates. In civil cases, while the burden of proof in the sense of establishing the case, initially lies on the plaintiff, the proof of rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses: See Felix O. Osawaru v. Simon Ezairuka & ors (1978) 6-7 SC 135 at 145, Bafunke Johnson & Anor v. Akinola Maja & Ors (1951) 13 WACA 290, Joseph Constantine Steam line Ltd v. Imperial Swelting Corporation Ltd (1942) A.C. 154 at 174, Odukwe v. Ogunbiyi (1998) 8 NWLR (pt.561) 339 at 353. It is now well settled that a misapprehension by the trial court as to the onus of proof or a wrong approach to  the evidence called before it presages an unfair trial rendering the judgment obtained as a result thereof liable to be set aside and a de novo hearing ordered. See Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19).799; Onyekaomru v. Ekwubiri (1966) 1 All NLR 32. A plaintiff must make out a prima facie case before the consideration of the defendants’ case arises. In Sanusi v. Ameyoigun (1992) 4 NWLR (Pt.237) 527 at 547, the Supreme Court stated:

“The point was again emphasised by this court in the case of Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24. The court explained that the proper procedure is that a trial Judge ought always to start by considering the evidence led by the plaintiff to see whether he has led evidence on the material issues he needs to prove. If he has not so led evidence, or if the evidence led by him is so patently unsatisfactory, then he has not made out what is usually referred to as a prima facie case, in which case the trial Judge does not have to consider the case of the defendant at all.”

In the instant case, the appellants were the plaintiffs before the lower court. They had the legal burden of establishing their case. To this end it was incumbent on them to lead evidence on all the material issues they need to prove and thus to make out a prima facie case calling for a rebuttal by the respondents. To ascertain the material issues calling for evidence, it is necessary to refer to the principal relief sought by the appellants, It has already been set out in this judgment but at the risk of repetition, it is reproduced hereunder. It is paragraph 21(a) of the joint statement of claim which reads as follows:

“1(a) A declaration that the seizure of the plaintiffs’ tractor with Reg. No.BN 481 X by the 2nd defendant upon a purported instruction of the 1st defendant was illegal, null and void and ultra vires the defendants as the same was not done in accordance with the terms and spirit of the loan agreement.”

From the above claim, there are two essential issues to be established to entitle the appellants to the relief. The first is the seizure of the tractor in question. Since the seizure of the tractor is admitted in the pleadings no evidence is required to establish it since what is admitted needs no further proof. The second material issue is that the seizure of the tractor is illegal, null and void as it is contrary to the terms of the loan agreement. To establish this aspect of the relief upon which issues were joined, the appellants were expected to produce and tender before the court a copy of the loan agreement or give secondary evidence of it as required by law. This they had failed to do. The implication is that they had failed to lead evidence on all the material issues relating to their claim and have thus failed to make out a prima facie case to be rebutted by the respondents. I am of the firm view that the court below was justified in holding that the burden was on the appellants to produce the original copy of the loan agreement.

With respect to the question whether an order of non-suit ought to have been decreed instead of an order of dismissal. Counsel for the appellants submitted that where the case of the plaintiffs has not totally failed and the defendant is not entitled to the judgment of the court, the proper order to be made is one of non-suit. He cited and relied on the cases of Abiegbe v. Ugbodume Festus Yesufu (1990) 1-2 S.C. 49. 1991 8 NWLR (Pt.209) 261. On his own part, learned counsel for the respondents stated that an order of non-suit should never be made only for the purpose of allowing a plaintiff who had failed to prove his case to have opportunity of doing so. He craved in aid the following cases: Nigerian Fishing Co. v. Western Nigeria Finace Corporation (1965) 1 NMLR 164 at 167; Chief Adebayo Bahorun v. Johnson O. Olorunfemi (1989) 1 SCNJ 23 at 32. Rev. Moses Abiegbe v. Adihereme Ugbodume (1991) 11 SCNJ 1 at 13 1991 8 NWLR (pt.209) 261 to submit that the appellants having failed to prove their case in the court below are not entitled to an order of non-suit.

The position of the law is that an order of non-suit cannot be made where on the facts the defendant is entitled to the judgment of the court. It can be made only where there is no satisfactory evidence entitling either party to the judgment of the court: See Ijodu Adeyola v. Cornelius Ibare Akinson (1939) 15 NLR 10, Chief Dada v. Ogunremi (1967) NMLR 181. Where there is sufficient evidence entitling one of the parties to the judgment of the court it would he improper to make an order of non-suit: Anthony Oyeyiola v. Stephen Adeoti (1973) 1 NMLR 103.

An order of non-suit will not be made if the relevant civil procedure rules makes no provision for it. In the case of John Orekie Anyakwo v. African Continental bank Ltd (1976) 2 SC 41, the supreme court observed that since there is no provision in the new High Court of Lagos State (Civil Procedure) Rules for an order of non-suit, it would appear that the power of the judges of the High Court of Lagos State to non-suit a plaintiff has been taken away. This appears to be the position in the instant case since the new High Court Civil Procedure applicable in Benue State High court does not appear to contain any provision for an order of non-suit. It follows therefore that the issue under consideration whether an order of non-suit or dismissal is appropriate does not arise.

In the light of the foregoing, the appeal lacks substance. It is accordingly dismissed with N1,000 costs in favour or the respondents against the appellants.

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Other Citations: (1999)LCN/0644(CA)