BORNO v. DAMBAM
CITATION: (2016) LPELR-40802(CA)
In the Court of AppealIn the Jos Judicial Division
Holden at Jos
ON FRIDAY, 29TH APRIL, 2016Suit No: CA/J/201/2014
Before Their Lordships:
JOSEPH TINE TUR Justice, Court of AppealELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal
RIDWAN MAIWADA ABDULLAHI Justice, Court of Appeal
BetweenMOHAMMAD DAN BORNO - Appellant(s)
AndH.R.H. ALHAJI BAFFA DAMBAM(SARKIN DAMBAM) - Respondent(s)
RATIO DECIDENDI
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1. ACTION - PLEADINGS: Aim/object/purposeof pleadings"Pleadings constitute the notice each partyintends to canvass at the trial. See ObmiamiBricks and Stones Nig. Ltd. vs. ACB Ltd.(1992) 3 SCNJ 1 at 35; Uwegba vs. Attorney-General, Bendel State (1986) 1 NWLR (Pt.16)303 at 317. Pleadings are suggestions ofCounsel. They are not receivable against aparty in proof of the truth of the facts statedtherein unless verified on oath, signed oradopted by them. See Somisi vs. Sowemimo(1980) 2 FCA 153 at 160." Per TUR, J.C.A. (P.6, Paras. C-F) - read in context
2. ACTION - PLEADINGS: Effect of failure tocall evidence in support of pleadings"Averments in pleadings are deemedabandoned where no oral or documentaryevidence is adduced to prove them. SeeOjikutu vs. Fella 14 WACA 628; Balogun vs.Amubikanhuan (1985) 3 NWLR (Pt.11) 27and UniJos vs. Ikegwuoha (2013) 9 NWLR(Pt.1360) 478 at 497."Per TUR, J.C.A. (Pp.6-7, Paras. F-A) - read in context
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3. APPEAL - INTERFERENCE WITHCONCURRENT FINDING(S) OF FACT(S):Circumstances under which an appellatecourt will interfere with the concurrentfindings of two lower Courts"In Kimdey Per TUR, J.C.A. (Pp. 25-31, Paras.C-C) - read in context
4. COURT - DUTY OF COURT: Duty of a trialCourt to evaluate evidence and makefindings of facts therefrom"The duty of a trial Court is to make findingsof fact on important issues raised in thepleadings, oral and documentary evidence.See Owoade vs. Omitola (1988) 5 SCNJ 1 at14; Okpiri vs. Jonah (1961) 1 All NLR 102and Okoye vs. Kpajie (1973) NMLR 84."PerTUR, J.C.A. (P. 16, Paras. B-C) - read incontext
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5. EVIDENCE - CROSS-EXAMINATION:Purpose of cross-examination"The credit of a witness is to be impeachedduring his testimony in the witness box. See1984) 1 SCNLR 1 at 88; Akinbiyi vs. Anike(1959) W.R.N.L.R. 16; Nwankwere vs.Adewunmi (1962) W.R.N.L.R. 298 at 302;Amadi vs. Nwosu (1992) 6 SCNJ 59 at 71 andAjao vs. Ajao (1986) 5 NWLR (Pt.45) 802;Obembe vs. Wemabod Estate Ltd. (1977) 5SC 115 at 139 and Odulaya vs. haddad(1973) 11 SC 357. It is improper for awitness testifying in the box not to be cross-examined on a material issue but for adefendant to wait to call rebuttal evidenceafter the plaintiff or his witness hadconcluded their testimony.See Agbonifo vs. Aiwereoba & Anor. (1988)2 SCNJ (Pt.1) 146 at 161; Babalola & Anor.vs. State (1989) 7 SCNJ 127 at 138-139;Nkwa vs. C.O.P. (1977) N.N.L.R. 98 at 103and Okosi vs. The State (1989) 2 SCNJ 183."Per TUR, J.C.A. (Pp. 15-16, Paras. C-A) - readin context
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6. EVIDENCE - EVIDENCE OF TRADITIONALRULERS: Significance of evidence oftraditional rulers"The Courts have accepted that generallythe evidence of traditional rulers or elders inthe Community or society on a materialpoint in controversy may, depending oneach circumstance, be accorded weightunless proved otherwise. See Udo vs.Melifonwu (1961) 5 EWLR 93 at 96; Oyakojavs. Ibadan District Council (1959) WRNLR304 at 306 and Halsbur's Laws of England,3rd edition, paragraph 319 and 320 page171. In Nwawuba Per TUR, J.C.A. (Pp. 16-19,Paras. D-B) - read in context
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7. INTERPRETATION OF STATUTE -SECTIONS 294(2)-(4) AND 318(1) OFT H E 1 9 9 9 C O N S T I T U T I O N ( A SAMENDED): Interpretation of Section294(2)- (4) and 318(1) of the 1999Constitution (as amended) as regards howevery determination by a Justice of theSupreme Court or the Court of Appeal is tobe headed"Every determination by a Justice of theSupreme Court or the Court of Appeal is,according to Section 294(2)-(4) readtogether with Section 318(1) of theConstitution of the Federal Republic ofNigeria, 1999 as amended, to be headed an"opinion" or a "decision". The Constitutionbeing supreme, its provisions have bindingforce on all authorities and persons,including appel late Court Just icesthroughout the Federal Republic of Nigeria.See Section 1(1) of the Constitution (supra).In Davies vs. Powell (1737), Willes, 46,Willes, C.J. held at page 51 that: "When thenature of things changes, the rules of lawmust change too." In Jurisprudence, 4thedition, page 197 by Diaz, the learnedauthor concurred as follows: "This is a truismin that the legislature and within limits, theCourts should change rules to keep the lawabreast of change."Per TUR, J.C.A. (P. 1,Paras. A-E) - read in context
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DECISIONJOSEPH TINE TUR, J.C.A. (Delivering the LeadingJudgment): Every determination by a Justice of theSupreme Court or the Court of Appeal is, according toSection 294(2)-(4) read together with Section 318(1) of theConstitution of the Federal Republic of Nigeria, 1999 asamended, to be headed an “opinion” or a “decision”. TheConstitution being supreme, its provisions have bindingforce on all authorities and persons, including appellateCourt Justices throughout the Federal Republic of Nigeria.See Section 1(1) of the Constitution (supra). In Davies vs.Powell (1737), Willes, 46, Willes, C.J. held at page 51that: “When the nature of things changes, the rules oflaw must change too.” In Jurisprudence, 4th edition,page 197 by Diaz, the learned author concurred as follows:“This is a truism in that the legislature and withinlimits, the Courts should change rules to keep the lawabreast of change.”
For the above reasons I have tagged or headed thisdetermination a “decision” to be in conformity with theconstitutional requirements.
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Mohammad Dan Borno, the appellant was the defendant
and H.R.H. Alhaji Baffa Dambam the respondent was the
plaintiff in the High Court of Justice, Borno State holden at
Maiduguri. The Writ of Summons was initiated by the
respondent against the appellant in the Court below on 9th
January, 2013 accompanied with a statement of claim. In
the course of trial, the original statement of claim was with
leave of the Court amended.
The appellant filed a Statement of Defence on 30th January,
2013. With leave of the Court the Statement of Defence
was also amended. The respondent filed a reply to the
Amended Statement of Defence. The matter proceeded to
trial. The parties relied on oral and documentary exhibits in
support of their respective pleadings. At the close of the
case learned Counsel submitted written addresses. The
learned trial Judge A.Z. Mussa, J., rendered his decision
on 27th February, 2014 and granted the reliefs claimed
against the appellant.
Aggrieved by the decision the appellant filed a Notice of
Appeal with four grounds of appeal. The appellant filed a
brief of argument on 3rd September, 2015. The appellant
distilled the following issues
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for determination:
“Whether having regards to the evidence adduced by
the parties in this case more particularly that of the
respondent, the trial Judge was right to have granted
the reliefs sought by the respondent. (This issue is
distilled from grounds 1, 2, 3 and 4 of the Notice of
Appeal).”
The respondent filed a brief on 9th November, 2015. The
lone issue formulated for determination by the appellant
was adopted by the respondent. The parties should assume
that I have read all the briefs and considered the
arguments and authorities before arriving at this decision.
See Order 18 Rule 3(3) of the Court of Appeal Rules, 2011.
The principal argument in the appellant’s brief is that the
respondent did not adduce evidence to establish his claims
in the Lower Court and was not entitled to judgment, citing
Mozie vs. Mba (2006) 27 NSCQR 425 at 431. Learned
Counsel took this Court through the oral and documentary
evidence, citing Chief Ayogu Eze vs. Brigadier General
J.O.Z. Okoloagu & Ors. (2009) LPELR-3922 and
Dawodu vs. Isikalu (2011) LPELR-4488 to show that the
authenticity of Exhibit “D” was a live issue.
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Esenowo vs. Ukpong (1999) 6 NWLR (Pt.608) 611 at
617; Union Bank of Nigeria Plc vs. Charles Olusola
Toyinbo (2008) LPELR-5056 at 50-51 paragraphs “G”-
“D” were referred to as showing that the appellant did not
sign Exhibit “D” hence it had no probative value, citing
Seidu vs. Attorney-General of Lagos State (1986) 2
NWLR (Pt.21) 165; Attorney-General, Abia State &
Ors. vs. Agharanya & Ors. (1999) 6 NWLR (Pt.607)
362 at 371 and Anaeze vs. Anyaso (1993) 5 SCNJ 151
at 168-169. Learned Counsel’s further contention is that
the fact that an unsigned document was admitted in
evidence without objection was immaterial as no weight
could be attached to such a document, citing Musa
Abubakar vs. E.I. Chuks (2007) LPELR- 52 (SC) and
Afemai Microfinance Bank Ltd. vs. Seacos Nigeria
Ltd. (2014) LPELR 22583 (CA).
Learned Counsel urged this Court to resolve the lone issue
in favour of the appellant, allow the appeal and set aside
the decision of the learned trial Judge.
The contention in the respondent’s brief is that from all
available records there was a business agreement
governing the relationship between the
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parties which the appellant had breached. Reference was
made to the custom applicable to the trade in Tokumboh
Motors, citing Sections 16 and 19 of the Evidence Act,
2011; Ogbuli vs. Ogbuli (2012) 19 WLR 143 at 149
and Moh’d Hussain vs. Moh’d N. Moh’d (2015) NWLR
(Pt.1445) 100 at 107. The learned Counsel argued that
the appellant being an immigration officer knew the in and
out of the business of trading in Tokumbo vehicles for a
profit. Admitted facts need no further proof, citing Asewe
Akpagher vs. Pius Gbangu & Ors. (2015) NWLR
(Pt.1440) 209 at 214 and Oguanuhu vs. Chiegboka
(2013) 6 NWLR (Pt.1351) 558 and Cross River State
vs. Young (2013) 11 NWLR (Pt.1364) 1; Alhaji Sani
Abubakar Danladi vs. Barr. Nasir Audu Dangiri & Ors.
(2015) 2 NWLR (Pt.1442) 124 at 124.
Learned Counsel drew attention to Alechenu vs. UniJos
(2015) 1 NWLR (Pt.1446) 333 at 340 as authority that
the learned trial Judge was right to have relied on Exhibit
“D” to found in favour of the respondent: Omorhirhi vs.
Enaterwere (1988) 1 NWLR (Pt.73) 746; NBA vs. A.R.
Maduablu, Esq. (2015) 15 NWLR (Pt.1481) 148 at 149
and Ngige vs. INEC (2015) 1 NWLR
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(Pt.1440) 281 at 294.
Learned Counsel again submitted that the respondent had
discharged the burden of proof and was entitled to
judgment as the learned trial Judge had properly evaluated
the evidence before arriving at the decision, citing Anyaka
vs. Anyaka (2015) 14 WRN 40; Doma vs. Agiri (1998)
3 NWLR (Pt.541) 246 at 268; Waju vs. The Governor
of Oyo State & Ors. (1992) 9 NWLR (Pt.265) 335 and
Hassan vs. State (2015) WRN 56 at 70. Learned
Counsel urged that the lone issue should be resolved
against the appellant and the appeal be dismissed.
The parties contested the suit on pleadings, oral and
documentary evidence. Pleadings constitute the notice each
party intends to canvass at the trial. See Obimiami Bricks
and Stones Nig. Ltd. vs. ACB Ltd. (1992) 3 SCNJ 1 at
35; Uwegba vs. Attorney-General, Bendel State (1986)
1 NWLR (Pt.16) 303 at 317. Pleadings are suggestions of
Counsel. They are not receivable against a party in proof of
the truth of the facts stated therein unless verified on oath,
signed or adopted by them. See Somisi vs. Sowemimo
(1980) 2 FCA 153 at 160.
Averments in pleadings are deemed abandoned where no
oral or documentary
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evidence is adduced to prove them. See Ojikutu vs. Fella
14 WACA 628; Balogun vs. Amubikanhuan (1985) 3
NWLR (Pt.11) 27 and UniJos vs. Ikegwuoha (2013) 9
NWLR (Pt.1360) 478 at 497.
Evidence to support pleaded facts may be oral or
documentary depending on the facts and circumstances of
each case. The relationship between the respondent and
the appellant is set out in their respective pleadings.
Paragraphs 3-7 of the respondent’s Amended Statement of
Claim pleaded the following facts:
“3. That the plaintiff pleads that he instructed the
defendant to use the capital of plaintiff with him to
buy cows, sheep and animals feeds as suggested by
the defendant (worth) Seven Million Naira
(N7,000,000.00) in the year 2009. That failure to
account for the money or its worth made the plaintiff
to demand for the refund of the money which the
defendant failed to do after repeated demands. The
plaintiff reported the matter to the police where the
defendant admitted owing Three Million, Seven
Hundred Thousand Naira (N3,700,000) and promised
to refund the money on 10th January, 2012 through
an undertaking/agreement wrote in presence of Auwal
Kadir Dambam.
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The copy of letter of admittance is attached and
marked as Exhibit “A” and will be relied upon at the
trial of this suit. And the witness deposition on oath
by one Auwal Kadir Dambam is annexed and marked
as Exhibit “C3”. Therefore, the plaintiff briefed A.
Abba Aji, Esq. Counsel in the law Firm of A. Abba Aji
& Co. The said Counsel wrote demand letters twice
but still the defendant refused to comply hence this
suit.
4. That the demand letters from A. Abba Aji & Co.
hereby annexed and marked as Exhibit “B” and “B1”.
5. That plaintiff witnesses depositions on oath of BM
Dambam and Umar Datti are hereby annexed and
marked as Exhibit “C1” and “C2”.
6. That the plaintiff further pleads that he suffered
generally as a result of non-remittance and
accounting of his money by the defendant from 2009
to date.
7. WHEREOF the plaintiff claims as follows:
(a) An order that the plaintiff is entitled to the sum of
Three Million Seven Hundred Thousand Naira
(N3,700,000.00) being money owed and admitted by
the defendant.
(b) An order of Court that the plaintiff is
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entitled to 10% interest on accrued money from 2009
to date.
(c) The cost of this suit.”
Paragraphs 2-20 of the appellant’s Amended Statement of
Defence is a bare face denial of the facts pleaded by the
respondent. They are as follows:
“1. The defendant admits paragraphs 1 and 2 of the
claimant’s statement of claim.
2. The defendant denies paragraphs 3 of the claimant
statement of claim and put the claimant to the
strictest proof thereon.
3. In further denial of paragraphs 3 and 4 the
claimant never gave the defendant 43 cattle, sheep
not animals feed worth of N7,000,000.00 in the year
2009. Also the claimant never invited the defendant
to account what transpired between them and did not
write any agreement with the claimant nor anybody
else to pay the sum of N3,700,000.00. Moreover, the
defendant reply only to the letter of demand to
account what actually transpired between them.
4. The defendant further deny paragraph 5 and put
the claimant on strictest proof thereon.
5. In further denial of paragraph 5 above, the
defendant never fixed date for remittance and or
accounting of the said sum.
6.
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The defendant further states that sometimes in 2006,
the claimant as a custom officer invited him start a
Tokumbo Cars business with the defendant, from
Nigeria to Benin Republic to bring vehicle together.
They have been into the business for a short period of
time with the promise to share the profit. The
defendant used to send money via the claimant bank
account with First Bank Plc where the defendant
depos i ted n ine hundred thousand Naira
(N900,000.00) only and three hundred thousand
N3,000,000.00) Naira only via same account.
7. The defendant later informed the claimant that he
was having problem with custom officers because
they knew the relationship between them, they
arrested and detained him in several occasions.
8. That defendant and claimant both agreed to
convert the business into farming and selling of
cattle, before then the claimant provide the defendant
with two vehicles to Ajilete town, at Idekims Hotel
and the defendant made an instant cash payment of
N1,700,000.00 to the claimant for the two vehicles,
the defendant along with one customs officer by name
Auwal Godawalle drove away the two vehicles.
Moreso, there is a van (J5 Bus)
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belonging to the claimant parked at Kano Motor
Park, Maiduguri.
9. The defendant started the business and a for start,
he loaded a trailer full of cattle to Awka, Anambra
State where defendant sold the cattle according to
the market tradition bit by bit and later sent the
money to the claimant via his First Bank Dambam B.
M’s account No.2502010033700 deposited by one Mr.
Aliyu two times.
10. The defendant further stated that he bought
animal feed for the sum of N1,700,000.00 and kept
same in Banki Town as instructed by the claimant.
11. The defendant also bought 27 cattle at the sum of
N1,482,000.00 for fattening together with 10
Sudanese sheep in the sum of N25,000.00 each all to
the claimant.
12. The claimant also instructed the defendant to
take responsibility of medical treatment of one Modu
Kawu Modu who was suffering from pyderma
gangresosum and he was admitted in the University
of Maiduguri Teaching Hospital (UMTH) on the July
6th 2006 and discharged on the 7th day of July, 2009
spending the total sum of N570,000.00 with folder
No.189761, medical report is hereby annexed and
marked as Exhibit “A”.
13. The
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defendant further stated that the claimant instructed
him to pay a house rent of one old man for the period
of eight months in the sum of N8,000.00 which he
did.
14. The defendant stated that the claimant has
sometimes collected the sum of N20,000.00 to his
family.
15. The claimant instructed me to give the sum of
N200,000.00 to Umar Datti and he also instructed me
to give the sum of N50,000.00 to one custom officer
call Allaraini.
16. The defendant stated that he bought a house to
the claimant here in Maiduguri at the cost of
N670,000.00 in the year 2006 during the business the
defendant spend the total of N65,000.00 to the
District Head and furnishing the house, the
agreement of purchase of the house is hereby
annexed and marked as Exhibit “B”.
17. The defendant states all that transpired between
them, have been in record but unfortunately to the
defendant his house was burnt in the 303 Housing
Estate, Maiduguri as a result he lost the transaction
record book. The police and fire service report is
hereby annexed and marked as Exhibit “C”.
18. The defendant states the claimant is not entitled
to the claims as
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endorsed or any other claim whatsoever against the
defendant.
19. The defendant shall found and reply on all
document correspondences petition, etc. Whether
specifically pleaded or not but are relevant or
incidental to the just determination of this case as
same is hereby pleaded.
20. Whereof the defendant shall at the trial urge the
Court to dismiss the claim into with substantial cost
and declare same as baseless, frivolous without
merit.”
Auwal Kadir Dambam’s name featured prominently in
paragraph 3 of the Amended Statement of Claim in whose
presence the appellant wrote the undertaking to refund to
the respondent the sum of N3.7 Million on 10th January,
2012. Auwal Kadir (PW3) adopted his sworn deposition on
15th May, 2013 and was cross-examined by the learned
Counsel to the appellant. PW3 answered at page 61 lines
20 to page 62 lines 1-6 of the printed record as follows:
“PW3: Auwal Kadir, live in Dambam, Bauchi State. I
am a cattle dealer. On 9th November and 10th
November, 2011 do you remember what happened
between the plaintiff and defendant, yes. And 26th
April, 2013 you made statement on oath, yes. We are
now
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applying to adopt the written statement on oath by
Auwal Kadir filed on 26th April, 2013.
Court – Statement made on oath by Auwal Kadir filed
on 26th April, 2013 hereby admitted as evidence
given before this Court.
CROSS-EXAMINATION:
I am Auwal Kadir. I am not their business partner, I
do not know when the plaintiff and the defendant
started their business. I don’t know whether it is
written or oral, I don’t know whether the business
was started in cash or kinds. I escorted H.R.H. Baffa
to Banki Town; not only I escorted him but I know
what was happening. H.R.H. informed of what is
happening, I did not see the cattle. So in nutshell I
was informed every thing about this transaction by
the plaintiff.
RE-EXAMINATION:
Why did you accompany the plaintiff to Banki.
Objection: I didn’t asked that question.
Court – Objection sustained.
Plaintiff Counsel – So we closed our case. Counsel
agreed on date i.e. 30th May, 2013 for defence.
May 20, 2013 for defence.”
It can be seen that the learned Counsel representing the
appellant never cross-examined PW3 concerning the
signing
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of Exhibit “D” as pleaded in paragraph 3 of the Amended
Statement of Claim.
The respondent (PW2) is a traditional ruler. He adopted his
sworn deposition on 11th March, 2013 and was cross-
examined. A cursory examination of the records of appeal
will show that at no time did the learned Counsel
representing the appellant impeach or discredit the
evidence of PW3 regarding the authorship of Exhibit “D”.
Not a single question was asked by the learned Counsel in
that regard. The evidence in that regard remained
unchallenged.
The credit of a witness is to be impeached during his
testimony in the witness box. See Onwobodo vs. Onoh
(1984) 1 SCNLR 1 at 88; Akinbiyi vs. Anike (1959)
W.R.N.L.R. 16; Nwankwere vs. Adewunmi (1962)
W.R.N.L.R. 298 at 302; Amadi vs. Nwosu (1992) 6
SCNJ 59 at 71 and Ajao vs. Alao (1986) 5 NWLR
(Pt.45) 802; Obembe vs. Wemabod Estate Ltd. (1977)
5 SC 115 at 139 and Odulaja vs. haddad (1973) 11 SC
357. It is improper for a witness testifying in the box not to
be cross-examined on a material issue but for a defendant
to wait to call rebuttal evidence after the plaintiff or his
witness had concluded their testimony.
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See Agbonifo vs. Aiwereoba & Anor. (1988) 2 SCNJ
(Pt.1) 146 at 161; Babalola & Anor. vs. State (1989) 7
SCNJ 127 at 138-139; Nkwa vs. C.O.P. (1977) N.N.L.R.
98 at 103 and Okosi vs. The State (1989) 2 SCNJ 183.
The duty of a trial Court is to make findings of fact on
important issues raised in the pleadings, oral and
documentary evidence. See Owoade vs. Omitola (1988) 5
SCNJ 1 at 14; Okpiri vs. Jonah (1961) 1 All NLR 102
and Okoye vs. Kpajie (1973) NMLR 84.
Paragraphs 3-7 of the Amended Statement of Claim
pleaded that the respondent is “H.R.H.” meaning “His
Royal Highness” the “Sarkin Dambam, Bauchi State.”
PW3 is a traditional ruler. The Courts have accepted that
generally the evidence of traditional rulers or elders in the
Community or society on a material point in controversy
may, depending on each circumstance, be accorded weight
unless proved otherwise. See Udo vs. Melifonwu (1961)
5 EWLR 93 at 96; Oyakoja vs. Ibadan District Council
(1959) WRNLR 304 at 306 and Halsbur’s Laws of
England, 3rd edition, paragraph 319 and 320 page
171.
In Nwawuba & Ors. vs. Enemuo & Ors. (1988) 19
NSCC
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(Pt.1) 930, Chief Nweke, the Chief of Urum, a traditional
ruler and a one time Court member before the dispute
arose admitted that the land in dispute belonged to Okibe,
the head of the respondent’s family. The Supreme Court
held at page 939 lines 18 to 25 per Nnaemeka-Agu, JSC
thus:
“…an admission by the Chief of Urum as to the
ownership of Okpokolo land long belong before this
litigation began is a material and relevant fact which
could be proved against subsequent generations of
Urum people, of which the appellants form a part.
Considering as I must, the circumstances in which
the admission was made (for which see Seismograph
Service (Nig.) Ltd. vs. Eyuafe (1976) 9, 10 SC 135), I
cannot but come to the conclusion that it is a very
strong piece of evidence against the 2nd set of
appellants as to the ownership of that part of Akpuo
land verged green in Exhibit “A”.
page 939 lines 43 to page 940 lines 1-9 his Lordship
concluded as follows:
“In addition to the above, I cannot ignore the fact
that the respondents called nine witnesses who were
obviously believed in view of the various findings of
fact I
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have referred to, and which have not been faulted in
this appeal. On the above state of the facts, there can
be no doubt that respondents proved their case. But I
should not fail to mention certain aspects of the case
for the appellants which further strengthen the
respondents’ case. I have set out the view of the
learned trial Judge on the evidence of the appellants’
star witness, DW2, the recognized traditional ruler of
Urum who testified that the land in dispute was
property of the respondents and Umuokpaleke sub-
family of Akanabo Urum. Umuokpaleke did not
however advance any claim to the land on their own.
Nor did any pleading on behalf of the appellants
support such a case. In the final analysis it is
therefore, the admission that the land belongs to the
respondents that becomes relevant and significant. It
is a matter of common knowledge that old men and
traditional rulers are by their positions not only in a
position to know the true facts in land dispute but
also often find it difficult to twist the truth. The
important admission by the recognized traditional
ruler of Urum in this regard has a ring of truth. It
appears to me to be more than
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a mere coincidence that in 1945, Chief Okafor Nweke,
the then Chief of Urum, in the Native Court, suit
No.20 of 1945, admitted, in the solemn atmosphere of
the Court, that the part of Akpuovu land called
Okpokolo by the appellants belonged to the
respondents predecessor-in-title; and now his son,
again the Recognized Traditional Ruler of Urum,
made an admission to the like effect.”
The appellant swore to a deposition on 15th January, 2013
which is as follows:
“I Muhammed Dan Borno, Adult, Male, Muslim and a
Nigerian citizen of residence in 303 Housing Estate,
Maiduguri do hereby make oath and state as follows:
1. That I am the defendant in this suit by virtue of my
position I am conversant with the fact of this case.
2. That sometimes in 2006 we started a Tokumbo
business with the claimant we use to go to Benin
Republic together and bring vehicles for sale, are
doing in peacefully for short period of time with the
promise of sharing profit proportionally together for
the first time we sent the sum of N900,000.00 (Nine
Hundred Thousand Naira) though his account with
First Bank and also N300,000.00 (Three hundred
thousand
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Naira).
3. That I informed the claimant that I was facing
much problems with custom officers because they
know my relationship with the claimant and
defendant they arrested and detained me several
occasions.
4. That myself and the claimant agreed to convert the
business into fattening and selling of cattle, then the
claimant provides two vehicles in lieu of which I paid
him the sum of N1,700,000.00 moreso, I packed a van
(J5 Bus) belonging to the claimant at Kano Motor
Park, Maiduguri.
5. That claimant instructed me to give the sum of
N200,000.00 to Umar Datti he also instructed to give
N50,000.00 to custom Officer called Allaraini.
6. That I started fattening and loaded one trailer of
cattle to Awka, Anambra State, after sale, I sent
money through the claimant account with First Bank
– Dambam B.M.’s Account No.2502010033700
deposited by one Mr. Aliyu two times.
7. That I further bought animal feed for the sum of
N1,700,000.00 and kept same in Banki Town as
instructed by the claimant.
8 . Tha t I bought 27 ca t t l e a t the sum o f
N1,482,000.00 for fattening together with 10
Sudanese sheep in the sum of N25,000.00 each
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all to the claimant.
9. The claimant instructed me to treat Modu Kawu
who was admitted in the University of Maiduguri
Teaching Hospital (UMTH) on the July 6th, 2006 and
discharged 2009 after spending the sum of
N570,000.00 only.
10. That the claimant instructed me to pay a house
rent of an old man at Hausari Ward, Maiduguri for
eight months in the sum of N8,000.00 cash, the
claimant also instructed me to give the sum of
N20,000.00 cash to his family.
11. That I bought a house on behalf of the claimant in
Maiduguri at the sum of N67,000.00 and gave the
sum of N30,000.00 to District Head as witness, the
defendant also furnished the house with the sum of
N35,000.00
12. That all the transaction between us had being in
my entry book for record purpose but my house at
303 Housing Estate, Maiduguri was burnt as a result
of fire incident that is why I lost my entry book.
13. That I urge the Court to dismiss the claimant
claim with substantial cost and declare same as
baseless, frivolous and without merit.
14. That I swear to this affidavit in good faith and in
accordance with Oath Act.”
The appellant adopted the sworn
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deposition on 30th May, 2013 and was cross-examined by
the learned Counsel to the respondent. The appellant was
confronted with the agreement of 10th November, 2011 but
simply answered, “…I don’t know anything about” (See
page 73 lines 20 of the printed record). The deposition of
the appellant is at variance with the facts pleaded in the
Statement of Defence and is in conflict with the Amended
Statement of Claim.
The evidence by PW3 that it was the appellant who wrote
Exhibit “D” was never impugned or impeached in the
Lower Court under cross-examination. Exhibit “D” reads as
follows:
“University of Maiduguri Teaching Hospital (UMTH)
P.M.B. 1414
Maiduguri,
10th November, 2011
AGREEMENT BETWEEN:
MOH’D DAN BORNO AND BAFFA DAMBAM
I Moh’d Dan Borno Jaran made an agreement to
refund the sum of N3.7 Million Naira on 10th
January, 2012. In Sha Allah at the present of Auwal
Kadir Dambam.
SGD.
Giver’s Name: Dan Borno
Address: UMTH,
SGD.
Date: 10/11/2011.”
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The learned trial Judge made findings regarding Exhibit
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“D” at page 99 lines 9 to page 100 lines 1-27 of the printed
record as follows:
“There is no doubt that there is a contract of trust
between the claimant and the defendant and the
Court have observed in the case of A-G. Rivers State
vs. A-G. Akwa Ibom State (2011) 8 NWLR (Pt.1248)
page 31 at page 48 that “where parties have entered
into a contract or agreement voluntarily and there is
nothing to show that same was obtained by fraud,
mistake, deceit or misrepresentation, they are bound
by the provisions or terms of the contract of
agreement.”
At a close examination of Exhibit “D” shows that the
defendant agreed to return the sum of N3.7 Million
on 10th January, 2012, to Baffa Dambam the claimant
herein.
The general rule of the law is that where parties have
embodied the terms of their agreement or contract in
a written document, no extrinsic evidence to add to
alter, subtract from very or contradict the terms
freely agreed to by them would be permitted. Their
rights and obligations under the said contract would
be determined by such terms specially set out in the
agreement itself and not evidence outside
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it. See UBN vs. Ozigi (1994) 3 NWLR (Pt.333) 385;
Koiki vs. Magnusson (1999) 8 NWLR (Pt.615) 492;
Ojoh vs. Kamalu (2006) All FWLR (Pt.297) 988.
It is also a settled law that a party cannot be heard to
deny any obligation under the contract which they
freely made. The terms and condition of the written
contract and/or agreement and indeed all its contents
cannot be contradicted, altered, added to or varied by
oral or other evidence outside and extraneous to it.
See the case of Elder Eseme Akpan vs. Ekanabasi
Asibong Ubong (2013) LPELR-20418 (CA).
Considering the above authorities and relying on
Exhibit “D” I have no doubt in my mind that the
defendant voluntarily and freely written said
agreement to refund the sum of N3,700,000.00 to the
plaintiff and he must be liable.
Regard to interest accrued the claimant has not led
evidence to show that the business was in progress
from the date the defendant agreed to refund the sum
of N3.7 Million to date. In view of this I declined to
award any interest accrued to the plaintiff.
In view of the forgoing I therefore, hereby entered
judgment for the claimant, and ordered as follows:
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(a) That the claimant is entitled to the sum of Three
Million Seven Hundred Thousand Naira only (N3.7m)
and same shall be refunded to the claimant.
(b) That the claimant is not entitled to any interest
accrued.
(c) N50,000.00 cost of this suit.”
I have read the records. Even without Exhibit “D” there is
ample evidence to support the findings of the learned trial
Judge.
In Kimdey & Ors. sv. Military Governor of Gongola
State & Ors. (1988) 19 NSCC (Pt.1) 827 Karibi-Whyte,
JSC held at page 838 lines 25-50 as follows:
“This Court has been invited to reverse the findings of
fact of the two Courts below that the right to the
Longuda Chieftaincy between the Bonsibe and the
Bonkumbebe is not rotational. There is the well
settled presumption of the correctness of the findings
of fact of Courts below, and the presumption must be
displaced to reverse the finding of fact – See Williams
vs. Johnson (1937) 2 WACA 253. It is also well settled
that this Court will not lightly interfere with
concurrent findings of fact of the Courts below. In
Ogundipe vs. Awe & Ors. (1988) 1 NWLR 118 at page
125 this Court
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affirmed its often repeating proposition that it will
not interfere where there have been concurrent
findings of facts by the Courts below unless such
findings are shown to be perverse or not the result of
a proper exercise of discretion. (See Obaseki, JSC at
page 125, Wali, JSC at page 127).
It is not the primary function of this or any appellate
Court to make findings of facts or to appraise
evidence. Also where the finding of fact is based
entirely on the credibility of the witness, this Court
will be reluctant to interfere. See Kponuglo vs. Kodaja
(1932) 2 WACA 24. The duty to make primary findings
of fact by the evaluation of the evidence before him by
the additional advantage of watching the demeanour
of witnesses is essentially preserved for the trial
Court – See Egir vs. Uperi (1974) 1 NMLR 22.
However, where the issue relates to the proper
inference to be drawn from the facts proved, the
Court of Appeal, including this Court, is in as good a
position as the Court of trial, and will draw the proper
inference naturally following from the facts so proved
– See Akesse vs. Akpabio (1935) 2 WACA 264.
The Court of Appeal will reverse
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the findings of fact if in its opinion, it is not
supported by the evidence – See Lengbe vs. Imale
(1959) WRNLR 325. This Court will however not
reverse the finding of fact of the Court below merely
because it would have found differently. See
Ogundulu vs. Philips & Ors. (1973) NMLR 267.”
Nnaemeka-Agu, JSC held at page 851 lines 7 to page 852
lines 1 to 13 of the judgment as follows:
“No doubt, the legal proposition that where there is
oral as well as documentary evidence, documentary
evidence should be used as a hanger from which to
assess oral testimony is a sound one. In Fashanu vs.
Adekoya (supra), Coker, JSC put the principle very
succinctly where he held at pages 91-92:
“Undoubtedly, the duty of the Court in ascertaining –
the truth in those circumstances is all but easy and
the best of logic may be as availing to one of the
parties as it is to the other. But there was produced
by both parties a large body of documentary evidence
containing a number of letters and other documents
and, as argued by learned Counsel for the plaintiff, it
is the duty of the learned trial Judge in a case like the
present to
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test the probability of the case of either of the parties
by reference to relevant documents which represent
evidence of some more or less permanent or perhaps
unassailable character.”
The decisive point in this appeal is, however, that
apart from Exhibits “1” and “2” which appear to
favour appellants’ case, there are Exhibits “3” and “4”
in his decision and it has not been suggested that he
did not advert to Exhibits “1” and “2”. Besides there
is Exhibit “5”, captioned “The Appointment and
Deposition of Chiefs (Appointment of Chief Longuda)
Order 1968” stated to have commenced on the 26th of
March, 1968. It bears the common seal of Numan
Federation Native Authority and appears to have been
signed by the Secretary. It was tendered in evidence
as “the Order relating to the Chief of Longuda” and
admitted without objection. As it bears the seal of the
Authority, it concludes this case against the
appellants in that it shows the new practice of
selection of the Chief. Neither in this Court nor in the
Court of Appeal has its authenticity been
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impeached in any ground of appeal, quite apart from
the fact that it was admitted in the Court of trial
without objection. The learned Counsel for the
appellants only tried to attack it in his oral
submissions before us. In my judgment that will not
do. Though it was not used in the Court below I am
entitled to draw any legitimate inference from it, as it
was admitted without objection and has not been
faulted (Akpapuna vs. Nzeka (1983) 1 SCNLR 1). But
by far the greatest injury to the appellants’ case was
in the oral testimony of PW1, Wilfred Kimde, the 11th
plaintiff/appellant himself. Under cross-examination
by the learned Counsel for the respondents, he
himself showed conclusively that the history of the
previous successions to the Chieftaincy stool did not
support the strict alternation between the two clans
which the appellants are insisting upon. He admitted
that Dukel of Bonsibe was followed by Potu, also of
Bonkumbebe. Similarly Githir of Bonkumbebe was
followed by Delo of the same clan. At a certain time
Suleiman, Gogo, and Yoila of Bonsibe followed one
after another. So the history admitted by the
appellants does not support their case in this
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appeal.
So, whereas Exhibits “1” and “2” tend to support the
appellants’ case, Exhibits “3”, “4” and “5” as well as a
substantial body of the oral testimony tendered
supported the respondents’ case, which was preferred
by the learned Chief Judge and confirmed by the
Court of Appeal. In short, in a case like this where the
documentary evidence before the Court goes both
ways and one side has a more substantial support of
the oral testimony before the trial Court, that set of
documentary evidence which has more substantial
support of the oral testimony outweighs the other. If,
as is the case here, the trial Court prefers that set of
documentary evidence, the appellate Court should not
interfere. In need not repeat that there is a
presumption that a trial Judge’s decision on facts is
correct, findings on primary facts being essentially
within the province of the Court of trial. For one to
appeal successfully on facts, he must affirmatively
displace that presumption: See Bakare Folorunso vs.
I.A. Adeyemi (1975) 1 NMLR 128; Williams vs.
Johnson (1937) 2 WACA 253. The appellants have
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woefully failed to displace that presumption in this
case. Rather the learned Counsel on their behalf
wants us to embark anew on the task of re-evaluating
the same evidence which the two Lower Courts have
already evaluated and come to their conclusions
thereon. This is exactly what we ought not to do, even
if we may arrive at different conclusion thereon. This
is exactly what we ought not to do, even if we may
arrive at different conclusions on them: See Asani
Balogun & Ors. vs. Alimi Agboola (1974) 1 All NLR
(Pt.2) 66.”
I uphold the findings and conclusions of the learned trial
Judge (as he then was) and dismiss this appeal as lacking in
merit. I assess N50,000.00 cost to the respondent.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU,J.C.A.: I have had the privilege and opportunity to read thedraft of the lead judgment delivered by my learned brother,JOSEPH TINE TUR, JCA.
I am in total agreement with the reasoning and conclusionsof his Lordship therein.
Consequently, I hereby dismiss the appeal and abide by theorders made therein.
RIDWAN MAIWADA ABDULLAHI, J.C.A.:
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I have had the privilege of reading in advance the decision
prepared by my learned brother, JOSEPH TINE TUR, JCA
just delivered. I agreed with his reasoning and conclusions
arrived at after due consideration of all the issues raised
for determination in the appeal.
The appeal has no merit and should be dismissed and I also
endorsed the order made as to costs.
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Appearances:
E.O. Akhayere, Esq. with him, N.K. Dariyem, Esq.and M.O. Alu, Esq. For Appellant(s)
-- For Respondent(s)
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