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ENEMCHUKWU

V.

OKOYE & ANOR

 

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 21ST DAY OF JANUARY, 2016

CA/E/273/2008

LN-e-LR/2016/17 (CA)

OTHER CITATIONS

(2016) LPELR-40027(CA)

 

BEFORE THEIR LORDSHIPS

HELEN MORONKEJI OGUNWUMIJU, J.C.A

MASSOUD ABDULRAHMAN OREDOLA, J.C.A

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A

 

BETWEEN

EMEKA S. ENEMCHUKWU Appellant(s)

AND

CHIMAROKE OKOYE & ANOR Respondent(s)

 

REPRESENTATION

I. E. Nchezor For Appellant

AND

Dr. Z. C. Anyogu with C. I. Achu Esq. For Respondent

 


[EDITORS:

Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]



MAIN JUDGMENT


HELEN MORONKEJI OGUNWUMIJU, J.C.A
. (Delivering the Leading Judgment):

This is an appeal against the Judgment of the Anambra State High Court delivered on 23/5/06 by Hon. Justice C.J. Okoli wherein his Lordship gave judgment in favour of the Respondents and dismissed the Appellant's claims. The undisputed facts that led to this instant appeal are as follows:

In October 2003, the Appellant entered into an oral contract with the 1st Respondent to deliver one BMW 318 Saloon Car to the Appellant on or before the end of October 2003 at the price of N450,000 (Four Hundred and Fifty Thousand Naira). The Appellant made an initial payment of N300,000. On 8/10/2003, the 1st Respondent delivered a BMW car with a shift system to the Appellant after which the Appellant drove the car away and came back the next day to pay N50,000 and paid another N10,000 on 9/10/2003. The Appellant was then given a composite receipt for the three payments to cover the sum of N360,000 he had paid so far, leaving a balance of N90,000. The Appellant however returned the car to the 1st Respondent, alleging that the contract had been for a BMW car with an automatic gear system and not the shift gear system 1st Respondent had given to him and asked the 1st Respondent to refund his money. The 1st Respondent refused to refund the money.

 

The Appellant initiated an action at the trial Court by a writ of summons and a Statement of Claim dated 14/3/05 for:

"a)     N650,000 (Six Hundred and Fifty Thousand Naira) damages being the present cost of vehicle the Respondents failed to deliver less N90,000.

b)      20% interest per annum on the Judgment till its final liquidation."

 

The 1st Respondent counter-claimed for the balance of N90, 000 with interest and other damages.

 

During the trial, the composite receipt issued by 1st Respondent to the Appellant for the N360,000 received was tendered by the Appellant to show that that he had indeed paid the said amount and marked as Exh P1. After considering the pleadings and Exh P1 before the Court, the learned trial judge held that the 1st Respondent is entitled to the balance of N90,000 and interest at the rate of 5% per annum until payment and ordered that the Appellant take back possession of the car which had passed to him.

 

Dissatisfied with the judgment of the trial Court, the Appellant by a Notice of Appeal filed on 30/07/06 containing 6 grounds of appeal has brought this Appeal. Records were transmitted on 01/07/08, deemed filed on 02/10/12. Appellant's brief was filed on 11/10/12, while Respondent's brief was filed on 19/04/13.

 

In the Appellant's brief settled by I.E Nchezor Esq, four issues were identified for determination to wit:

1.       Whether in the evidence of the Appellant and the 1st Respondent, it was established that the invoice receipt issued by the 1st Respondent to the Appellant was their contractual agreement.

2.       Whether issuance of receipt of payment of another company without the consent of the company can confer an acceptance of goods sold, in good condition in accordance with S. 251 (3) of Contract Law cap 32 Laws of Anambra State 1991.

3.       Whether the 1st Respondent kept to the terms and specifications of the car demanded by the Appellant and if not whether the Appellant has the right to seek for damages.

4.       Whether the Lower Court gave judgment against the weight of evidence.

 

In the Respondents' brief settled by Dr. E Chukwuemeka Anyogu, only two issues are identified for determination as follows:

1.       Whether, on the evidence adduced in the Court below, the 1st Respondent supplied to the Appellant the brand and specification of the BMW car agreed upon by the parties.

2.       Whether the Lower Court gave judgment against the weight of the evidence.

 

After careful perusal of both briefs, I find that there is only one issue for determination.

 

SOLE ISSUE

Whether the trial Court gave judgment against the weight of evidence before it.

 

Appellant's counsel submitted that an invoice receipt is not an agreement between a buyer and seller but a document showing details of a buyer and seller and a document showing details of a purchase or sale, including price and quality of merchandise. He quoted Blacks Law Dictionary, 8th edition. Counsel submitted further that the learned trial judge erred in law by describing the invoice signed by Appellant and 1st Respondent as the only contractual document or agreement for the transaction in respect of the purchase of the B.M.W car. Counsel argued that parties are bound by their pleadings and evidence before the Court and none of the parties led evidence to show that Exh P1 served as an agreement between them. Counsel submitted that the trial Court is not allowed to use Exh P1 as the basis of their agreement when all parties admitted in the pleadings that there was only an oral agreement. He cited Enemuo v Duru (2006) All FWLR (Pt. 304) 508; Emegokwue v Okadigbo (1973) 4 SC 113 Pg. 539.

 

Counsel argued that since the 1st Respondent admitted in his evidence that the invoice of Chimaroke Motors belongs to a dead person and 1st Respondent is neither the owner, an employee of the said company, nor was he acting on behalf of the company, 1st Respondent was in fact impersonating the company and he who goes to equity must go with clean hands and no one will be allowed to benefit from his own wrong. He cited Enekwe v. International Merchant Bank (2006) 28 NSCQR.

 

Counsel submitted that Exh P1 was illegally obtained and has no basis in law, therefore cannot be subject to S.522 and S.4 of the Contract Laws of Anambra State . Counsel urged this Court to hold there was no invoice, since one cannot offer what he does not have and that the Respondent had no invoice.

 

Counsel submitted that only members of a company are subscribers whose names must be entered in the register of members pursuant to S.9 (1) & (2) of the Companies and Allied Matters Act Cap 59 LFN 1990 (CAMA) and since the 1st Respondent had admitted on Pg. 117 of the Record that he is not the owner of the company, there is no need for further proof that he cannot act in the capacity he did. There is no doubt that 1st Respondent had no authority to use the invoice and was involved in fraudulent use of same. He cited Amadi v Acho (2006) All FWLR (pt. 334) 1949 CA; Bunge v Gov of Rivers State (2006) All FWLR (pt.325) 1 SC; Mozie v Mbamalu (2006) All FWLR (PT.341) 1200 SC.

 

Counsel posited that the Court has the duty to interpret a contractual agreement made by the parties. He cited Marine Chevron Ltd (2006) 26 NSCQR 1121; Standard Nigeria Ltd Engineering Co Ltd v Nigerian Bank for Commerce and Industry (2006) 25 NSCQR 654.

 

Counsel argued that the 1st Respondent did not deny the fact that he was supposed to supply an automatic gear system. Counsel cited Amayo v Erinwingboro (2006) 26 NSCQR 1455, Owena Bank v Olatunji (2005) FWLR (Pt. 124) Pg. 529 at 594; Akinlagun v Oshoboja (2006) All FWLR (Pt. 325) Pg. 61, Baker Marine v Chevron Ltd (2006) 26 NSCQR 1121; Mogaji & Ors v Rabiatu O.Odofin (1981) 1 SC; Vincent Bello v Emeka (1981) 1 SC 101.

 

Counsel argued that the 2nd Respondent did not pray for costs nor did he mention any figure as costs but the Learned Trial Judge manufactured the figure of N50,000 when he stated that the 2nd Respondent applied for N50,000 as damages and awarded the sum of N10,000 to the 2nd Respondent.

 

Counsel submitted that the Trial Judge was not an impartial stake holder. He cited Adisa v Ladokun (1973)1 All NLR (Pt. 2) 18 at 31; Adamu v State (1991) 4 NWLR (Pt. 187) 530. Counsel urged this Court to set aside the judgment of the trial Court and dismiss the Respondents claim.

 

Respondent's counsel submitted that a contract may be oral, in writing or a combination of both by S.6 of the Contract Laws Cap 32 Laws of Anambra State 1991 .

 

Counsel argued that it was necessary for the trial Court to resolve what was agreed on between the parties i.e. whether it is the sale of an automatic transmission BMW 318 car, or a shift gear system BMW car and to do that, the Trial Court must consider all evidence tendered. He cited Bilante International Ltd v NDIC (2010) 15 NWLR (Pt. 1270) 407 SC. Counsel argued further that the Trial Judge was duty bound to consider Exh P1 in its evaluation exercise.

 

Counsel submitted that the argument of Appellant's counsel that Exh P1 goes to no issue and should be discountenanced as untenable in this case since Appellant introduced Exh P1 showing that the Appellant had paid N360,000 (Three Hundred and Sixty Thousand Naira) in three instalments and receipts were issued and the Appellant gave notice to produce the original and Appellant himself produced Exh P1. Appellant therefore cannot expect the Court to ignore Exh P1 in relation to the contractual agreement.

 

Counsel argued that Appellant cannot be heard to say he was under any misapprehension as to the application of Exh P1 to him. Counsel cited Omoniyi v Alabi (2004) 5 NWLR (Pt. 870) 551; Egbase v Oriaveghan (1985) 2 NWLR (Pt. 10) 884.

 

Counsel argued that Exh P1 cannot be ignored on the basis that it is or is not the contract document. Counsel submitted that documentary evidence need not be specifically pleaded to be admissible as long as the facts and not the evidence contained in the documents are expressly pleaded. He cited Per Iguh in Ipinaye II v Olukotun (1996) 6 SCNJ 74; (1996) 6 NWLR (Pt. 453) 1487; Okonkwo v CCB (Nig.) Ltd (2003) 8 NWLR (Pt. 822) 347 at 412.

 

Counsel submitted that the trial Court needed to admit Exh P1 to enable it construe the purport of the document whether it was to transfer a shift gear system or an automatic gear. Counsel submitted that the trial Court applied S. 132 of the Evidence Act , and since Exh P1 did not mention automatic transmission, the testimony of the Appellant was in conflict with the contents of Exh P1 and when there is a conflict between oral testimony and documentary evidence, the documentary evidence should supersede. He cited Chemical and Allied Products PLC v Vital Investments Ltd (2006) 6 NWLR (Pt. 976) 220 at 267; Otito v Odidi & Ors (2011) 7 NWLR (Pt. 1245) 108 at 126; UNIC v UCIC Ltd (1999) 3 NWLR (Pt. 593) 17; Fashanu v Adekoya (1974) 6 Sc 83.

 

Counsel submitted that the learned trial judge was correct in law when he held that the car agreed to be sold had a shift gear and not an automatic gear system on page 129 of the Records. Counsel submitted further that Appellant should have refused to make further payment when he drove the car to the bank and found out it was not an automatic gear system, and that Exh P1 is not a mere receipt since it contains the signature of the Appellant.

 

Counsel submitted that the Appellant got the car he wanted and is only trying to be mischievous.

 

Counsel submitted further that illegality cannot arise simply because a contractual deed is not asserted or proved. He cited A.G Rivers State v A.G Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31 at 108.

 

Counsel argued that the Appellant was never deceived that 1st Respondent was acting on behalf of Chimaroke Motors as seen on page 25 of the Records. That the Appellant knew that 1st Respondent used the receipt for his business and nothing more and Appellant's prayer that this Court should hold that S. 521(3) of the Contract Law of Anambra State 1999 Cap 32 does not apply is a bid to avoid his responsibility which should not be allowed. He cited A.G Bendel State v UBA (1986) 4 NWLR (Pt. 37) 547; Odutola v Papersack (Nig) Ltd 2006 18 NWLR (Pt. 1012) 470.

 

Counsel submitted further that the Appellant is literate and during cross examination claimed to have read Exh P1 before signing it, and Exh P1 contained the chassis no and engine no passed to the Appellant, and the Appellant cannot claim he was not aware. Counsel argued that the cases cited by Appellant's counsel do not help his case.

 

Counsel argued that the trial Court never rewrote nor purported to rewrite the agreement of the parties but merely used the only document tendered to resolve the different positions adopted by the parties. This, counsel submitted was obvious in the statement of the learned trial judge on page 128 of the Records. He cited Woluchem v Gudi (1981) 5 SC 291.

 

Counsel submitted that a party to a contract has no right to avoid the contract unless he can show that it is avoidable at his option. Counsel submitted further that it is not enough for the Appellant to show that he voided the contract for the sale of specific ascertainable goods without showing that such contract was legally voidable at his option and Appellant failed to do this. He cited Punch (Nig) Ltd v Jumsum Nig Ltd (2011) 12 NWLR (Pt. 1260) 168.

 

Counsel argued that counsel for 2nd Respondent asked for cost which he put at N50, 000 and advanced reasons for the demand. Thus, the Trial Judge's award was based on the prayer of 2nd Respondent's counsel. Counsel submitted that the criteria for the award of costs is that a successful party is entitled to costs unless there are special reasons why he should be deprived. Counsel submitted further that a successful party need not even ask for costs before he is awarded same and in this case, 2nd Respondent's counsel asked. He cited Adelakun v Oruku (2006) 11 NWLR (Pt.992) 625 at 650; NNPC v Klifeo Nig Ltd (2011) 10 NWLR (Pt. 1255) 209 at 234; Anyeaegbunam v Osaka (1993) 5 NWLR (Pt. 294) 449 at 462.

 

Counsel urged this Court to dismiss the appeal.

 

RESOLUTION

There are five ingredients that must be present in a valid contract. They are offer, acceptance, consideration, intention to create legal relationship and capacity to contract. All these five ingredients are essential, and a valid contract cannot be formed if any of them is absent. See BFIG v BPE (2008) All FWLR (Pt. 416) 1915; Orient Bank (Nig) Ltd. v. Bilante International Ltd (1997) NWLR (Pt.515) 37.

 

To understand the real bone of contention between the parties, we must remember that a contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. According to Blacks Law Dictionary 8th Edition , a contract is defined as a promise or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. The five ingredients for creating a valid contract, I believe are present in this case. There is no dispute regarding that. Parties intended for the contract to be binding and enforceable. See Njikonye v. MTN Nig. Comm. Ltd. (2008) 9 NWLR (Pt.1092) 339, P.T.F. v. W.P.C. Ltd. (2007) 14 NWLR (pt. 1055) 478; Metibaiye v. Nareili International Ltd. (2009) 16 NWLR (Pt. 1167) 326; Dodo v. Solanke (2007) ALL FWLR (Pt. 346) 57.

 

In civil matters, parties are bound by their agreement. The Courts generally do not interfere in the manner that parties choose to do business with each other as long as it is not criminal. When contracts are voluntarily entered into by parties, they become binding on them based on the terms they have set out for themselves. It is trite that where there is a valid contract agreement, parties must be held to be bound by the agreement and its terms and conditions.

 

Even though the contract agreement between the Appellant and the 1st Respondent was made orally, there is no dispute as to the fact that there was an agreement between the parties for the purchase of a B.M.W. car, what is in dispute is whether the car should be a shift gear system or an automatic gear system.

 

I agree with the Appellant's counsel's argument that Exh P1 was not made to serve as a contractual agreement between parties. The 1st Respondent had admitted that the agreement was made orally, so no need for further ado on that point. Where I depart from the reasoning of the Appellant's counsel however, is where he says that the Appellant was not given the car that he wanted.

 

The Appellant and 1st Respondent entered a contract orally for a specific price (Four Hundred and Fifty Thousand Naira) and brand (B.M.W) of the car appellant intended to purchase. Appellant paid N300,000 (Three Hundred Thousand Naira) upfront, and paid N60,000 (Sixty Thousand Naira) after he had collected and driven the car. I find it impossible to believe that anybody who can drive does not know the difference between an automatic or shift gear. The Appellant had the opportunity to refuse the car the moment he got into the car and drove it. Even if he did not return it immediately, he should have desisted from paying anything further.

 

In my view, the N60,000 (Sixty Thousand Naira) paid by the Appellant indicates satisfaction with the car which in turn infers that Appellant got the item he paid for.

 

Exh P1 is the receipt issued to the Appellant as acknowledgment of payment of the sum of N360,000 (Three Hundred and Sixty Thousand Naira) for the BMW Series car given to him by the 1st Respondent. It contained the name and address of the Appellant, the chassis and engine number, how much the Appellant had paid and what balance was left to be paid. Appellant admitted to reading the receipt before appending his signature. On Pg. 105 of the Record, Appellant testified that he even discussed reservations he had concerning the receipt and discussed it with 1st Respondent who assuaged his fears.

 

Appellant's contention that the payment was advance or that he was not given the car he paid for on Pages 103-104 of the Record does not hold water. Appellant drove the car to the bank and noticed the speedometer showed 196,000km as against 100,000km agreed upon by the parties.

 

Appellant's counsel made much of the fact that Exh P1 is not the contractual agreement between him and the 1st Respondent. The Appellant however, appended his signature on it, thereby appending his signature on a document that contained the engine and chassis number of the B.M.W passed to him. Appellant also stated on Record that he is literate and read the contents of Exh P1 before signing same. The implication of all these is that Appellant was not deceived but indeed picked the specification he paid for.

 

In the absence of fraud, duress or plea of non est factum, the signature of a person on a document is evidence of the fact that he is either the author of contents the document that are above his signature or that the contents have been brought to his attention. It does not matter that he did not read the contents of the documents before signing it. The general rule is that a party is estopped by his deed and a party of full age and understanding is bound by his signature to a document, whether he reads or understands it or not. It is only a party that has been misled into executing a deed or signing a document essentially different from what he intended to execute or sign that can plead non est factum as a defence in action against him. See Yadis Nigeria Ltd v Great Nigeria Insurance Company Ltd (2000) LPELR-10365 (CA); (2001) 11 NWLR (Pt.725) 529; Orumwense v Amu & Anor (2008) LPELR-8573 (CA).

 

The Appellant is literate and had read Exh P1 and even understood it as the receipt that it was.

 

It is a settled position that in determining the admissibility of evidence, it is the relevance of the evidence such as a document, that is important and not how it was obtained. In other words, admissibility of evidence, particularly documents depend, on the purpose for which it is being tendered. There are copious authorities in regard to admissibility of documents. This means if Exh P1 is relevant to the case at hand, it is admissible, and it is, what is more, the Appellant himself introduced it. See Elias v. Disu (1962) 1 All NLR. 214; Ogbuanyinya & 5 ors. v. Obi Okudo & 2 ors. (1979) 6-9 SC. 32; (1979) ANLR 105 at, 112; (1979) 1MSLR 731; (1979) 3 LRN 318 at 324; (1979) 6-9 SC (Reprint) 34; Kuruma v. R. (1955) A.C. 197 at 203; Oshurinde v. Akande (1996) 6 SCNJ 193 at 199 - 200; (1996) 6 SC. 193; A.K. Fadallah v. Arewa Textile Ltd. (1997) 7 SCNJ 202 at 217 ; Agbahomovo & 2 ors. v. Eduyegbe & 6 ors. (1999) 2 SCNJ 94 at 105; (1999) 2 Sc. 79 at 86 ; Okonji & 2 ors. v. Njokanma &  2 ors. (1999) 12 S C. (pt.11) 150; (1999) 12 SCNJ 259 at 273-275; Alli & anor. v. Chief Alesinloye & 8 ors. (2000) 6 NWLR (Pt.660) 177 at 213. 215; (2000) 4 SCNJ 264; Ogbe v Asade (2009) 18 NWLR (Pt. 1172) 106.

In Nwabuaku v. Onwordi (2006) ALL FWLR (331) 1236 at 1251, the Supreme Court restated the position thus:-

"Admissibility of evidence is based on relevance. A fact in issue is admissible if it is relevant to the matter before the Court. In that respect, relevancy is a precursor to admissibility flowing from the above, what is not relevant is not admissible."

See also; Fawehinmi v. NBA (No.2) , (1992) 2 NWLR (105) 558 at 583; N.A.B. v. Shuaibu (1991) 4 NWLR (186) 450 at 465; Torti v. Ukpabi (1984) 1 SCNLR 214, Ogu v Manid Technology & Multipurpose Cooperative Society Ltd (2010) LPELR- 4690 CA.

Furthermore, admissibility is governed by the purpose for which the evidence is sought to be admitted. See ACB Ltd v. Alhaji Gwagwada's case supra at p.277. In Ishola vs UBN Ltd (2005) All FWLR (Pt 256) 1202 at 1213, the Supreme Court held that:

"The Court can only use a document properly admitted before it for the purpose intended by the parties as pleaded unless  the attention of the Court is drawn by any of the parties before it to do so. And even in that case, the Court must invite all the parties before it to address it on the point before making a decision on it."

 

It is settled law that a document inadmissible for a purpose may be admissible for another purpose. See Onochie v Ikem (1989) 4 NWLR (Pt.116) 458 at 466, Akinduro v Aloya All FWLR (Pt.381) 1653 at 1674.

The purpose is usually determined by the pleadings which is notice of the case a party intends to canvass at the hearing. See Obiami Bricks and Stones Ltd vs ACB (1992) 3 SCNJ 1 at 35; Uwegba vs Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 303 at 317; Wuyah v. Jama'a local govt., Kafanchan (2011) LPELR-9078 (CA).

 

If Appellant intended to rely on Exh P1 as evidence of money he paid for the car, then he has to rely on all the contents of the document. Appellant cannot pick and choose which portion of Exh P1 to use when it suits him. Therefore, if Exh P1 is sufficient to prove the contents therein and Appellant's signature on it is sufficient proof that he was aware of what he has signed not being an illiterate. He cannot be allowed to turn around and renege from the contract at will. Appellant should have rejected the car at the earliest opportunity, which was when he checked out the car but even if he could not tell, the moment he entered the car to drive, it was another fine opportunity to reject the car.

 

In the pleadings of the Appellant as Plaintiff at the trial Court, he asserted on page 103 of the Record that:

"I paid N360,000 to the 1st Defendant to supply to me a BMW 3 series car with automatic gear this was in early October 2003. The total amount for the supply of the vehicle was N450,000. The 1st Defendant's counsel issued me a receipt for the N360,000 paid to him. This is the receipt."

 

He sought to prove the amount of money he paid for the car with a receipt which was issued to him. The Court is entitled to look at the whole document.

 

It is trite law that a Court has no power to award to a claimant that which was not claimed. In Badmus V. Abegunde (1999) 11 NWLR (Pt. 627) 493, Onu JSC observed:

"It is trite law that the Court is without power to award to a claimant that which he did not claim. This principle of law has time and again, been stated and re-stated by this Court that it seems to me that there is no longer any need to cite authorities in support of it. We take the view that the proposition of the law is not only good law but good sense. A Court of law may award less, and not more than what the parties have claimed. A fortiori, the Court should never award that which was not claimed or pleaded by either party. It should always be borne in mind that a Court of law is not a charitable institution, its duty in civil cases is to render unto every one according to his proven claim.''

 

Evaluation of evidence entails much more than the Judge saying "I believe" or "I didn't believe a witness". There must be the reasons why the Court arrived at its conclusions for preferring one evidence to the other on Record. See Emirate Airline v Promise Mekwunye (2014) LPELR- 22685 CA.

 

It is basic principle of law that a plaintiff or Petitioner as the case may be has the burden to prove the relief sought in the statement of claim or petition to obtain Judgment. That burden does not shift. This is because he is the party who claims the reliefs in the statement of claim or the petition, and so the onus probandi rests on him. He must prove the affirmative content of his statement of claim or petition. Our adversarial system of justice demands that.

 

The law of evidence is all about proof of a particular issue. Proof in its legal meaning is the process by which the existence or non-existence of facts is established to the satisfaction of the Court.

 

Burden of proof can be divided into three categories:- The legal burden, the evidential burden, and burden on the pleadings.

 

In Buhari v. Obasanjo (2005) 7 SCNJ 1 at 47. Uwais CJN states thus:-

"In general, in a civil case the party that asserts in its pleadings the existence of a particular fact is required to prove such fact by adducing credible evidence. If the party fails to do so, its case will fail. On the other hand, if the party succeeds in adducing evidence to prove the pleaded fact, it is said to have discharged the burden of proof that rests on it. The burden is said to have shifted to the party's adversary to prove that the fact established by the evidence adduced could not on the preponderance of evidence, result in the Court giving Judgment in favour of the party. These propositions are the product of Sections 135 to 139 of the Evidence Act, Cap 112 LFN 1990."

Generally, in civil cases, the burden of proof is cast on the party who asserts the affirmation of a particular issue. See Okechukwu v. Ndah (1967) NMLR 368; Akinfosile v. Ijose (1960) SCNLR 447; NBN LTD. v. Opeola (199name=50012164) 1 NWLR (pt. 319) 126. The burden rests on the party whether Plaintiff or Defendant who substantially asserts the affirmative of an issue. See MESSRS LEWIS & PEATS (NLR) LTD. v. A.F. AKHIMIEN (1976) 7 SC 157 at 169; Kennedy v INEC (2010) LPELR-9134.

 

Pleadings are not synonymous with evidence and so cannot be construed as such in the determination of the merits or otherwise of a case. A party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleadings, and where there is none then the averments in the pleadings are deemed abandoned. The same principle of law goes for whatever defence a Defendant seeks to rely on in the process of demolishing the case against him. See Emegokwe v Okadigbo (1973) NMLR 129.

 

The quarrel of the Appellant is that the learned trial judge in the judgment held as follows in construing the receipt as a contractual agreement between the parties on page 138 of the Record:

"This document, Exhibit P1 was signed by both the plaintiff and the defendant. Exhibit P1 is the only contractual document for this transaction

Reading the express words of Exhibit P1 and the evidence of the parties on the formation of the contract for the sale of the BMW 318 Saloon Car, I have no difficulty in finding that there was an unconditional contract for the sale of the BMW car as a specific or ascertained good."

 

The Respondent is not claiming that Exh P1 is the contract but that the Court is entitled to look at the contents and the purport of Exh P1. I daresay I have to agree with learned Appellant's counsel that Exh P1 was tendered as a receipt and cannot metamorphose into the contract agreement between the parties. There is no doubt that it is not every mistake or error of law in a judgment that is fatal to warrant its being set aside or vitiate same. The opinion of the learned trial judge in construing Exh P1 as a contractual instrument is an error in law. However, to secure a reversal of the judgment, the Appellant must also show how the error of law complained of did in fact occasion a gross miscarriage of justice and or substantially affected the decision. See Oladejo Adewuyi Ajuwon v Fadeke Akanni (1993) 9 NWLR (Pt. 316) Pg. 182 at 205; Olubode v Salami (1985) 2 NWLR (Pt. 7) Pg. 282, A.G Ekiti & Ors v Victor Adegoke Adewumi & Anor (2002) 1 SC 47; (2002) LPELR-3160 (SC). In fact in Diamond Bank v Partnership Investment Co. Ltd (2009) 18 NWLR (Pt. 1172) Pg. 67, the Supreme Court held that no error of law or fact will vitiate a judgment if there are no other evidence to support the said judgment. Therefore, in this case, it is hard to ignore the facts elicited under cross examination by the Respondents' counsel to the effect that the Appellant did not complain when he took possession of the vehicle and even paid more of the purchase price as evidenced by Exh P1. There was evidence to show a valid contract between the parties for the 1st Respondent to supply a gear shift BMW vehicle to the Appellant.

 

Although a Court is not expected to make or rewrite a contract for parties, it is expected to uphold contracts once the condition precedents are met. It is my belief in this case, that the Appellant intended to buy the car he got from the 1st Respondent and only changed his mind when it became his turn to fulfil his obligations under the contract by paying the balance of the agreed sum.

 

In the circumstances, the Appeal is without merit and it fails. The judgment of Hon. Justice C.O. Okoli of the Anambra State High Court is hereby affirmed. Appeal Dismissed. N100,000 costs to the Respondent against the Appellant.

 

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.:

I have had a preview of the judgment just delivered by my learned brother, Justice Helen Moronkeji Ogunwumiju, JCA. My noble Lord had admirably, appreciatively and meticulously dealt with all the issues raised cum canvassed before us in this appeal. Indeed, I agree with the reasoning and conclusions reached therein. I also have nothing gainful to add thereto. Thus, for the reasons contained in the said leading judgment, I also adjudge the instant appeal as lacking in merit. It is accordingly dismissed by me. I adopt the consequential orders contained in the leading judgment of my learned brother, Ogunwumiju, JCA, inclusive of the one made with regard to costs.

 

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.:

I had read the draft of the judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU JCA, I agree with his reasoning and conclusions. I agree that the appeal has no merit and it accordingly dismissed. I abide by all the orders made therein.

 

 

 

 

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