S. C. Ezemba V. S. O. Ibeneme & Anor (2004)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE, J.S.C.

The respondents as plaintiffs commenced an action in the High Court of Anambra State sitting at Onitsha against the appellant as defendant under the undefended list procedure but following a notice of intention to defend filed by the appellant, the suit was transferred to the general cause list for trial upon pleadings. The parties accordingly filed and exchanged pleadings. The plaintiffs/respondents subsequently with the leave of court, filed an amended statement of claim wherein they claimed against the defendant/appellant in paragraph 31 thereof as follows:

“1. N440,000.00 (Four hundred and forty thousand naira) being the balance owed by the defendant to the plaintiffs.

2. Interest on the said amount at the rate of 4% (Four percent) from the date of judgment until the entire sum is liquidated.”

At the trial, parties led evidence in support of their respective pleadings. The two plaintiffs testified, respectively, as P.W.1 and P.W.3 while Sunday Ugwu an employee of the 1st plaintiff at the material time testified as P.W.2. The defendant/appellant testified on his behalf and called no witness.

The facts of the case are simple and straightforward. Both parties entered into an agreement whereby the plaintiffs/respondents were to supply to the defendant/appellant 50,000 metres of 50 mm aluminium conductor cables at the rate of N13.50 per metre for a total price of N675,000.00 to enable the latter execute an electrification project at Alor the contract of which was awarded to him by the Anambra State Government. The case for the plaintiffs/respondents is that they supplied the quantity of goods as stipulated and even supplied more than what was agreed upon by delivering a total of 52,032.09 metres instead of the agree quantity of 50,000 metres. The goods were delivered on behalf of the plaintiffs/respondents by an employee of 1st plaintiff/respondent by name Sunday Ugwu (P.W.2) who delivered the goods at Alor to Cyril Ikechukwu Attah said to be the site manager of the defendant/appellant. The plaintiffs/respondents mentioned that after the supplies, the defendant/appellant paid to them in two instalments, a total sum of N235,000.00 leaving a balance of N440,000.00 which he has refused to settle despite repeated demands, hence they instituted the action against him.

The defendant/appellant’s case, on the other hand, was that the quantity of cables supplied to him was 17,407 metres of cables and that the sum of N235,000 he paid to the plaintiffs/respondents was the value of that quantity of cables. He denied vehemently being indebted to the plaintiffs/respondents.

The learned trial Judge, Ofomata, J., in his judgment delivered on 15th June, 1998 found in favour of the plaintiffs/respondents to whom he adjudged entitled to their claim. On appeal by the defendant/appellant to the Court of Appeal, Enugu Division, that court in its unanimous decision delivered on 17th May, 2000 dismissed the appeal and affirmed the judgment of the trial High Court. This is a further appeal by the defendant to be referred to simply as appellant. The appeal is predicated on four grounds. Parties by their counsel filed and exchanged briefs of argument, which were adopted and relied upon for the consideration of the appeal with oral address to highlight some aspects of the briefs. In the appellant’s brief, two issues were identified as arising for the determination of the appeal. These are:

“(i) Whether upon a calm view of the pleadings and the evidence, the Court of Appeal below was right when it affirmed the judgment of the court of. trial which held that the respondents had proved that they delivered 52,032.9 metres of aluminium conductor cable to the an appellant .

(ii) Whether the judgment of the Court of Appeal below represent a dispassionate and full consideration of the issues raised by the appellant before that court and fully argued in the appellants brief.”

For the plaintiffs/respondents hereinafter, referred to simply as respondents, their counsel filed a respondents’ brief with the following issues –

“1. Were the learned Justices of the Court of Appeal right when they affirmed the judgment of the trial court that the respondents delivered 52,032.9 metres of aluminium conductor cables to the appellant

2. Did the Court of Appeal consider all the issues properly raised before it. If answered in the negative has their failure to do so occasioned any miscarriage of justice”

A careful perusal of the two sets of issues reveals that though differently worded, they are nevertheless identical in content.

On the first issue for determination, the learned counsel for the appellant, Mr. Udechukwu, SAN, who settled the brief, submitted therein that the respondents did not prove that they supplied 52,032.9 metres of aluminium conductor cables to the appellant; that since the respondents pleaded in paragraphs 14-17 of their amended statement of claim that they were going to rely on waybills signed by P.W.2 and one Cyril Ikechukwu Attah on behalf of the appellant in proof of the delivery of the goods, the respondents were bound to produce the said waybills and that since the only waybill tendered by the respondents was exhibit ‘A’ dated 15/7/91 showing a delivery of only 3,020 metres of cable, the respondents had failed to prove their case. It was further argued on the strength of section 149(d) of the Evidence Act, 1990 that the failure of the respondents to produce evidence of delivery of the remaining quantity of cables is either that such evidence is non-existent or that if produced, it would not support the case of the respondents. He relied on the following cases and provisions of the Evidence Act – Elias v. Omo-bare (1982) 5 SC 25; (1982) (Pt. 1) vol. 1 All NLR 70; A.C.B. Plc. v. Haston (Nig.) Ltd. (1997) 8 NWLR (Pt. 515) 110 at 131; sections 93, 94 and 96 of the Evidence Act. Learned counsel further submitted that since the appellant admitted the delivery of 17,407 metres of cable the respondents were only entitled to the value of that quantity. Referring to the observation in the leading judgment of the court below delivered by Ubaezonu, JCA, to the effect that the appellant should have called Cyril Ikechukwu Attah, his site manager to give evidence, learned counsel submitted that it is for a plaintiff to prove his case and not for the defendant to disprove it citing in support the case of E. D. Tsokwa & Sons Company Ltd. v. Union Bank of Nigeria Ltd. (1996) 10 NWLR (Pt. 478) 281.

In his response, learned counsel for the respondents, Mr. Onochie submitted that the appellant’s submissions are misconceived. He argued, firstly, that a party to a suit is not obliged to lead evidence in support of every averment in his pleadings and referred to the case of Olurunfemi & 7 Ors. v. Chief Rafiu Eyinde Asho & Anor. (2000) 2 NWLR (Pt. 643) 143. Secondly, learned counsel pointed out that under the rules of pleadings, a pleader who has pleaded more than he strictly needed to have done can always disregard the unnecessary or surplus averments. Thirdly, it was submitted that the law of evidence requires a party to prove his case by the best evidence available. Learned counsel referred to the evidence of P.W.2 which the two lower courts believed to the effect that he delivered 52,032.9 metres of aluminium cables to the appellant through his site manager Cyril Ikechukwu Attah and citing the case of Lawrence Nwankpu & Anor. v. Dennis Ewulu & 2 Ors. (1995) 7 NWLR (Pt. 407) 269 at 293 argued that the circumstances under which an appellate court can interfere with the findings of fact of a trial court has not arisen in this case. On the contention by the appellant that he was not obliged to call as a witness Cyril Ikechukwu Attah, learned counsel for the respondents submitted that in civiI cases, while the burden of proof initially lies on the plaintiff, the proof or rebuttal of issues arising in the course of the proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses. Counsel craved in, support the case of Friday Elema &Anor. v.Princess Charity A. Akenzua (2000)13 NWLR (Pt.683) 92; (2000) 6 SCNJ 266 at 238.

Since the main plank of the appellant’s appeal revolves on pleadings, that is to say, that the respondents did not prove their case strictly in conformity with their pleadings in paragraphs 14 to 17 of their amended statement of claim, I consider it appropriate to advert to one of the cardinal rules of pleadings which is that a party is only required to plead facts and not the evidence by which those facts are to be proved. Discussing this principle in the case of Okagbue v. Romaine (1982) 5 SC 133 at 163, Idigbe, JSC said”

In the words of Lord Denman, C. J. in Williams v. Wilcox 8Ad & EL 315 at 331, which I respectfully adopt,

‘It is an elementary rule in pleading, that, when a state of facts is relied on, it is enough to allege it simply, without setting out the subordinate facts which are the means of producing it or the evidence sustaining the allegation. Thus in a case very familiar and almost identical with the present, if a trespass be justified by a plea of highway, the pleader never states how the locus in quo became highway; and if the plaintiff’s case is that the locus in quo, by an order of Justices, award of inclosure commissioners, local Act of Parliament or any other lawful means had ceased to be such at the time alleged in the declaration, he simply puts in issue the fact of its being a highway at that time, without alleging the particular mode by which he intends to show, in proof, that it had before then ceased to be such.’ See Williams v. Wilcox (1838) 112 E.R. 857 at 863.”

Against the background of the principle thus stated, I will reproduce hereunder paragraphs 14 to 17 of the amended statement of claim –

“14. The plaintiffs delivered the consignments of electrical materials at Alor and the consignments were duly collected by the site manager of the defendant, one Cyril Ikechukwu Attah. The plaintiffs will at the trial of this suit found on the documents signed by the said site manager on behalf of the defendant.

14(a) The consignments were delivered by Mr. Sunday Ugwu, who was at the material time under the employment of the 1st plaintiff. The said Mr. Sunday Ugwu also signed the waybills on behalf of this 1st plaintiff.

15. The consignments were each time off loaded in the premises of Chief Betrand Ojudo at Alor.
16. The electrical materials supplied to the defendant at his contract site were made in consignments between the 15th to the 25th of July, 1991 and are made up as follows:

(a) Soibe – 2 drums of 2020 and 1000 metres respectively totalling 3,020 metres of 50 mm.

(b) DEN Electrical Trade Mark (Nig.) Ltd. Onitsha – 5 drums of 3,000 metres of 50 mm each-15,000 metres.

(c) 300 metres of 70 mm cables were personally requested by the defendant to be added in order to enable him string the high tension line leading to Uruezeani village via Ichie C.C. Onyemesili’s residence.

(d) Sam & Sam Electrical Ltd. Benin – 5 drums of 5000 metres of 50 mm each and 3000 metres of 70 mm – total 28,000 metres.

(e) 1000 metres of 70 mm were later added making it 4000 metres of 70 mm in order to cover the high tension area.

(f) Cutix Plc. Nnewi – 2 drums of 6012.9 metres of 50mm.

Grand total = 52,032.9 metres.

17. The defendant had requested through his site manager for some quantity of materials to keep the work going pending the arrival of the major consignments. The 1st plaintiff as a result rushed two drums of 2020 and 1000 metres mentioned in paragraph 16(a) to the contract site in the 1st plaintiff’s personal car in the morning of 15th July, 1991 which were collected by the site manager Cyril I. Attah before the main consignments arrived later in the evening of that same date. The plaintiffs will at the trial of the suit found on the document signed by the said site manager on behalf of the defendant.”

From the above averments, it seems to me plain that the material facts which the respondents were required to plead and which they infact pleaded were the deliveries of 52,032.9 metres of aluminium cables to the appellant. In what manner they were to prove the deliveries goes to the realm of evidence. If they pleaded that they would rely on documents but the documents were unavailable or were rejected, I do not think they should be precluded from adducing other credible evidence in proof of the material averments. The delivery of consignments of goods is a fact provable by the direct evidence of the person who delivered or witnessed the delivery. Section 77 of the Evidence Act, 1990 provides that –

“77.Oral evidence must in all cases whatever be direct-

(a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact.”

In my view, the mere fact that a transaction is reduced into writing does not exclude oral evidence of that transaction in proof thereof subject of course to the provisions of section 132(1) of the Evidence Act, 1990 where oral evidence is excluded by documentary evidence in respect to judgments of court, official and judicial proceedings, written agreements and grants or other dispositions of property reduced into writing. These situations do not apply in the present case as a waybill or receipt for goods does not fall into the categories of matters specified under the section.

In the case of Monier Construction Company Ltd. v. Tobias I.Azubuike (1990) 3 NWLR (Pt. 136) 74, the appellants canvassed before this court that the documents exhibits ‘A’, ‘B’ and ‘D’ tendered at the trial court were inadmissible in evidence as they were not pleaded and that in their absence, the respondent failed to prove the special damages claimed by him. In rejecting that contention, Agbaje, JSC had this to say:

“Even if exhibits A, B & D are inadmissible which in my view they are not, the decision of the court below would have been the same on the admissible evidence. This is so in my view because there is the oral evidence of P.W.2 the Managing Director of FEMCO Stone Crushing Industries as to the sale and delivery of 2,400 cubic yards of chippings at N25.00 per cubic yard i.e. N62,400.00. The evidence is an eye witness account of the transaction. It is primary evidence of the transaction.”

A similar view was expressed by this court in the case of Wahab Aigbotosho Sijuola Olanrewaju v. The Gov., Oyo State & 6 Ors. (1992) 9 NWLR (Pt. 265) 335 at 366 where it was decided that oral evidence of what transpired in a meeting could be given in evidence even though there was a recorded minutes of the meeting.

In the instant case, the respondents (P.W.1 and PW.3) gave evidence which the trial court believed to the effect that Sunday Ugwu (at the material time the servant of P.W.1) supplied 52,032.9 metres of aluminium conductor cables to the appellant through the latter’s site manager Cyril Ikechukwu Attah. Earlier, PW.1 had tendered exhibit ‘A’ the receipt of 3020 metres of the cables. The pith of the contention of the appellant is that since exhibit ‘A’ merely reflects the supply of a much lesser quantity of cables than the respondents claimed he had delivered, they were deemed to have failed in their action. That contention would have been tenable if exhibit ‘A’ was tendered as evidence of the total quantity of cables supplied. This is so because documentary evidence being permanent in form is more reliable than oral evidence and is used as a hanger to test the credibility of oral evidence. See the cases of S. B. Fashanu v. M. A. Adekoya (1974) 6 SC 83; Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445 at 473. In the present proceedings, however, the respondents pleaded in paragraph 16 of the amended statement of claim earlier reproduced that the goods were supplied in six consignments. Sunday Ugwu (P.W.2) testified under cross-examination at p. 51 lines 8 to 9 that there were four deliveries. This is a minor discrepancy, which is natural bearing in mind that he was giving evidence in 1996 about a transaction that took place in 1991, that is, about 5 years previously. The inference to be drawn from the pleadings and the evidence of P.W.2 is that exhibit ‘A’ did not represent the totality of the quantity of cables supplied but just the supply of one consignment which synchronized with that pleaded in paragraph 16(a) of the amended statement of claim. It is for this reason that the disparity between exhibit’ A’ and the evidence of P.W.2 with respect to the quantity of cables supplied is not fatal to the respondents’ case.

In civil cases, the phrase “burden of proof’ has two distinct and frequently confused meanings. Firstly, it may mean 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; secondly, the burden of proof in the sense of adducing evidence often referred to 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 shift constantly as one scale of evidence to or the other preponderates. As Aniagolu, JSC correctly observed in the case of Felix O. Osawaru v. Simon Ezeiruka (1978) 6 & 7 SC 135 at 145:

“In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff (Joseph Constantine Steam Line Ltd. v. Imperial Smelting Corp. Ltd. (1942) AC 154, 174) the proof or 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 the case of Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 at 353.

In the case under consideration, the respondents having adduced oral evidence accepted by the learned trial Judge to the effect that they, through P.W.2 supplied the appellant 52,032.9 metres of cable, the evidential burden shifted to the appellant to rebut that evidence and show that no cable or a lesser quantity of cable was supplied. In this regard the appellant testified but his evidence was nothing but a maze of contradictions. Whereas in paragraph 13B of his statement of defence he pleaded that Cyril Attah was his sub-contractor whose duties did not include the taking of delivery of goods, and that he personally received goods supplied to him, in his evidence in chief, he confirmed that Cyril Attah was his sub-contractor but under cross-examination at p. 58 line 27 of the record, he admitted that Cyril Attah was his site manager. Still under cross-examination, at p. 57 lines 16 to 25, he testified in one breath that 17,407 metres of cables were delivered to him personally but in another breath he stated that he was not present when the cables were delivered.

No witness who has given on oath to material of inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness. In the face of the contradictory evidence given by the appellant, the courts below disbelieved him and accepted that the goods in question were delivered at Alor to Cyril Attah the site manager of the appellant. It is he who is competent to give evidence with respect to the quantity of cables he received on behalf of the appellant but he was not called to give evidence and the omission to call him to testify is fatal to the defence. I therefore agree with Ubaezonu, JCA when at page 160, from line 33 of the record he said:

“But the devastating weakness in the appellant’s case which supports the respondents case was the failure of the appellant to call this very important actor Cyril Attah to testify for the appellant who was his employer. No reason was given for the failure to call him. The provision of section 149(d) of the Evidence Act operates against the appellant.”

I entirely agree with him but I do not think that section 149(d) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 could be invoked against the appellant. This is because it is quite settled that that provision is concerned with the withholding of evidence and not with the failure of a party to call a particular witness. See Tewogbade v. Akande (1968) NMLR 404; Ogbodu v. The State (1987) 3 SC 497 at 526; Musa v. Yerima (1997) 7 NWLR (Pt. 511) 27, (1997) 53 LRCN 2549 at 2553.

In this case the respondents have discharged by credible evidence the evidential burden of proving that they supplied 52,032.9 metres of cables to the appellant on whom the evidential burden of proving the contrary had shifted. Having not led credible evidence in that regard the appellant’s defence had collapsed thereby entitling the respondents to judgment.

The learned trial Judge carefully evaluated the evidence led on both sides. With respect to the evidence of Sunday Ugwu (P.W.2), he said at page 87 lines 4 to 27 –

“On the issue of quantity of goods supplied by the plaintiffs to the defendant, there is evidence before me that a total of 52,302 metres of aluminium conductor cables were supplied to the defendant through his project site manager at Alor. The manager was Cyril Attah. This fact was not disputed. One Sunday Ugwu (P.W.2) made the deliveries to Attah at Alor. The evidence of P.W.2 was unshaken, un-contradicted under cross-examination. Between 1990 and December 1993 P.W.2 worked as the manager of the 1st plaintiff’s business. He left the plaintiff’s business in December, 1993. He had personal knowledge of the transaction between the plaintiffs and the defendants. He delivered the goods to the defendant through Cyril Attah. He is quite an independent witness who has no special interest to protect. His testimony is credible. I accept his evidence with regard to the quantity of goods supplied and the time it was supplied and the balance of goods left unpaid.”

With respect to the appellant’s case, the learned Judge continued inter alia from p.87 to p.90 as follows:

“The defendant claimed in his defence that only 17,407 metres of aluminium conductor cables were supplied to him personally …

In paragraph 16 of the amended statement of claim the plaintiffs averred that they supplied a total of 52,302 metres aluminium conductor cables of specific dimension mentioned in the sub-paragraphs of paragraph 16 …

There was no specific denial of each material fact averred by the plaintiffs in paragraph 16 of the statement of claim …

The defendant impressed me as unreliable witness who is not worthy of credit. ..

Defendant did not call Mr. Cyril Attah to deny receiving the goods which the plaintiffs’ P.W.2 stated were supplied to him.

The defendant lied before this court when he claimed that the duties of Cyril Attah did not include receiving of supplies of goods. I find as a fact that Mr. Cyril Attah received the whole goods as authorised agent of the defendant.”

The court below affirmed the above findings. In the leading judgment of Ubaezonu, JCA, he concluded at page 162 of the record as follows:

“The respondents, having given credible evidence through P.W.2 of the supply of the agreed quantity of the materials to the appellant, the learned trial Judge believed the respondents and rightly held in my view that the respondents have proved their case. The onus now shifts to the appellant who met the respondents’ case with a tissue of lies, inconsistencies and contradictions. The learned trial Judge found him unworthy to be accorded any credibility. He was right, in my view, to so find. The findings of fact made by a trial court which saw the witnesses and assessed their credibility, unless such findings are perverse or contrary to the dictates of justice, an appeal court should not interfere with such findings.”

These are concurrent findings of the two lower courts. There are no exceptional circumstances to warrant the interference of those findings by this court. Accordingly, I will answer the first issue for determination in the affirmative, that is to say, that the learned Justices of the Court of Appeal were right when they affirmed the judgment of the trial court that the respondents delivered 52,032.9 metres of aluminium conductor cables to the appellant.

The second issue for determination poses the question whether the Court of Appeal considered all the issues properly raised before it, and if not whether the failure to do so occasioned any miscarriage of justice. The record of appeal shows that the appellant at the court below filed thirteen grounds of appeal and from these, he formulated only one issue for determination. In his brief filed at the court below, he canvassed the lone issue and thereafter proceeded to argue the grounds of appeal filed. The court below observed that it was wrong for the appellant to argue his grounds of appeal one after the other after formulating one issue for determination but nonetheless proceeded to consider the grounds of appeal argued by the appellant. The appellant’s complaint under this issue is that some of the grounds of appeal, which he filed at the court of trial, were not considered by the Court of Appeal.

With profound respect to learned senior counsel to the appellant, I find this contention disturbing. It is even more disturbing when it is realised that the counsel for the appellant who conducted the case in the court below and settled the appellants’ brief is a Senior Advocate of Nigeria. Since the introduction of brief writing in the appellate courts about two decades ago, the practice has evolved whereby issues for determination in an appeal are derived from the grounds of appeal: see Ogida v. Oliha (1986) 1NWLR (Pt. 19) 786: Hart v. Hart (1987) 4 NWLR (Pt. 63) 105; Fasoro v. Bevioku (1988) 2 NWLR (Pt. 76) 263; Akinbinu v. Oseni (1992) 1 NWLR (Pt. 215) 97. Such an issue so formulated must be of such a nature that a decision on it one way or the other must affect the result of the appeal: Attorney-General of Kwara State & Ors. v. Olawale (1993) 1 NWLR (Pt. 272) 645 at 660.

When the issues for determination have been formulated from the grounds of appeal, arguments in the brief are canvassed on the basis of the issues and no longer on the grounds of appeal. This principle was recently restated by this court in the case of Stephen Onowhosa & 5 Ors. v. Peter Ikede Odiuzou (1999) 1 NWLR (Pt. 586) 173; (1999) 1 SC 40 at 46 where Ogwuegbu, JSC delivering the leading judgment of this court opined thus:

“No issue was formulated in respect of ground two of the grounds of appeal. The defendants argued the grounds of appeal in their brief. Argument on appeal should be based on issues formulated and not on grounds of appeal. We have gone along way since the introduction of brief writing and this court has said in a number of its decisions that arguments at the appeal court should be based on issues formulated and not on grounds of appeal. I will in the circumstance ignore the arguments in respect of ground two of the ground of appeal. It is not in compliance with Order 6 rule 3 of the Court of Appeal (Amendment) Rules, 1984.”

For the reasons articulated in the above excerpt I will similarly decline to entertain arguments that the Court of Appeal did not consider or consider fully argument on the grounds of appeal before it. In any case, I am of the view that the resolution of issue one in this appeal has sufficiently disposed of this appeal.

In the light of the conclusion arrived at with respect to the first issue for determination which was resolved in favour of the respondents, it is my judgment that this appeal lacks substance and is accordingly dismissed. I affirm the decision of the two lower courts. The respondents are entitled to costs, which I assess and fix at N10,000.00 against the appellant.

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SC.142/2000