In The Court of Appeal of Nigeria
On Wednesday, the 26th day of April, 2017
Before Their Lordships
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
1. BABA ALI ABDUIAZIZ
2. B.A.I.B. INTERNATIONAL LTD
3. ISMAILA ADAMU
4. IBRAHIM BABAYE
5. ALHAJI MUKTAR
6. MUHAMMAD KUMURYA
7. ALHAJI GARBA-Appellants
JINGTEX NIGERIA LIMITED-Respondent
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court of Justice (the Lower Court) in Suit No. KN/FTCC/007/2011 delivered on the 21st of January, 2013, by Hassan, J. (as he was then). The respondent as the claimant at the Lower Court sought the following reliefs:
(a) Against all the defendants:
The sum of N178,659,445.00 (One Hundred and Seventy Eight Million, Six Hundred and Fifty Nine thousand, Four Hundred and Forty Five Naira) being cost of Textile Materials supplied to the defendants which value is still outstanding against the defendants in favour of the Claimant.
(b) Against the 1st defendant:
i. The sum of N36,200,000.00 (Thirty Six Million, Two Hundred Thousand Naira) being balance of money collected from the Claimant for supply of precious stones.
ii. The sum of N20,000,000.00 (Twenty Million Naira) and $40,000 (Forty Thousand Dollars) collected as loan by the 1st defendant from the Claimant for Bureau De Change Business.
(c) 10% Court interest on the total sums of N234,859,445,00 (Two Hundred and Thirty Five Million, Eight Hundred and Fifty Nine Thousand, Four Hundred and Forty Five Naira) and $40,000.00 (Forty Thousand Dollars) from the date of judgment till the whole judgment sum is liquidated.
(d) Cost of filing and prosecuting this action.
Pleadings were filed, issues joined and the matter proceeded to trial, whereat, parties called witnesses who testified in support of their respective claims. The learned trial Judge delivered judgment wherein he found that the claimant (respondent) failed to prove its claim of N178,659,445.00 against the appellants but failed to dismiss same. The claims of N32, 200,000.00, N20,000,000.00 and N$40,000,00 US Dollars, all against the 1st appellant were granted. The appellants were dissatisfied with the judgment, hence they filed notice of appeal to this Court. The respondent filed notice of cross-appeal on the 1st March 2016.
The appellants filed brief of argument on the 10th of October, 2013. On page 3 thereof, 3 issues have been distilled from the grounds of appeal for determination in the appeal, which are thus:
(i) Whether the learned trial Judge followed the due procedure permitted by law when he failed and neglected to dismiss the claimant’s claim for the sum of N178,659,445.00 against the defendants despite his findings that the claimant failed to prove the claim (distilled from ground 1).
(ii) Whether the learned trial Judge lacked the jurisdiction to entertain the claimant’s claim relating to “supply of minerals in form of precious stone” (distilled from ground 3).
(iii) Whether the learned trial Judge was not wrong for giving more weight to the testimony of PW1 and granting the claimant’s claim for the sum of N36,200,000.00 in the face of more credible evidence of PW1 and the series of documentary evidence corroborating his testimony. (Distilled from grounds 4 and 5).
The respondent’s brief of argument which was filed out of time on 4th of May, 2016 was deemed filed on the 9th of June, 2016, with two (2) issues for determination formulated on page 5 thereof, which are:
(i) Whether in a calm view of the pleadings and evidence of the parties before the Court below, the trial Lower Court was right in not dismissing the claimant’s claim of N178,659,445.00 but non-suit the claim in view of the defendant’s failure to prove payment of the goods supplied to them by the claimant as contended by them. (Distilled from ground 1 of Notice of Appeal),
(ii) Whether the trial Lower Court was right in the face of admission of the 1st defendant in awarding and ordering the defendant to pay the sum of N36,200,000.00 to the claimant being money had and received from supply of precious stone. (Distilled from grounds 3, 4 and 5 of the Notice of Appeal).
A Reply brief was filed on the 24th of June 2016. The issues for determination in the appellants’ brief of argument and those contained in the respondent’s brief of argument are intertwined, individual and dovetailing such that the determination of one, would also determine the other. For this reason, the 3 issues for determination contained in the appellants’ brief of argument, would be taken as the issues to be resolved which would ultimately determine the appeal.
On this issue, Mu’az Esq., of learned counsel who settled the appellants’ brief of argument, did submit that it was wrong for the learned trial Judge of the Lower Court not to have dismissed the respondent’s claims for N178,659,445.00, having found that same was not
proved by credible evidence. That it is the law, when a case has not been proved by evidence, same is to be dismissed. Counsel cited and relied on the cases of Bilante International Ltd v. NDIC (2011) All FWLR (Pt. 598) P. 804 @ 818 – 819 and Military Gov. of Ondo State v. Kolawale (2008) MJSC P. 203 @ 215 to buttress the submissions supra. Counsel did urge that issue 1 be resolved in favour of the appellants and to dismiss the claim of N178,659,445.00 by the respondent against the appellants.
For the respondent, Ithunokha Esq., did contend that, on the pleadings, and the depositions in paragraphs 4, 5, 6, 7 and of the statement on oath, the appellants had admitted receiving the goods, therefore, the burden of proving that they had paid for same lies on them to prove that payments were made for the goods supplied. The provisions of Sections 136 (1) (2) of the Evidence Act, 2011 cited to buttress the submission that he who asserts has the burden of proof. That where a party admits the existence of a transaction or debt, the burden of proving that payments have been made is on such a party. The case of Okoli v. Morecab Finance (Nig) Ltd (2007) 4 – 5 SC P. 199 @ 145 and Federal Military Gov. of Nigeria v. Sani (1990) 7 SC P. 89 cited to buttress the submissions supra. That by Sections 20 (1) and (3) of the Evidence Act, 2011, what has been admitted requires no proof.
Learned counsel pointed out that the cases Bilante International Ltd v. NDIC cited and relied on by counsel to the appellants is distinguishable from the instant case in that, in the former case, there was no admission of the claims but in the latter case, there has been admission of the existence of the transaction. That having admitted the existence of the transactions the burden of proving that they have paid for the goods supplied, was on them. Counsel further contended that if there was any payment made, same must be supported by credible evidence by producing evidence of payment by receipts or bank teller, if paid into an account with Bank. The cases of Okoli v. Morecab Finance (Nig) Ltd (2007) All FWLR (Pt. 369) P. 1164 @ 1184 and Akalonu v. Omokaro (2003) FWLR (Pt. 175) P. 493 @ 502 cited to reinforce the submissions supra.
Learned counsel cited and relied on the cases of Saleh v. BON Ltd (2006) All FWLR (Pt. 310) P. 1600 @ 11611 and In- Time Connection Ltd v. Mrs. Janet Ichue (2009) LPELR – 87772 CA CA/PH/79/2009, to buttress the submission that whereas party has admitted the existence of a transaction and goods supplied, the burden of proving that he has paid for some lies on him. That in the same vein, the appellants, having admitted the existence of the transaction and goods supplied to them, they ought to have adduced cogent evidence of payments for the good that were supplied, but they failed to do so, therefore, the Lower Court ought to have entered judgment for the respondent which he did not. Counsel further contended that by the admissions of the appellants, the findings of the Lower Court that the respondent did not prove his claims cannot be correct. The cases of Yesufu v. ACB (2) SC/48/1979 (1976 -1978) 3 NBLR P. 547, and First Bank of Nigeria Plc v. Okonsupra as null as Craig v. Craig (1960) All NCR and Dada v. Oganremi (1967) NMLR P. 181 @ 185 cited to reinforce the contention that in view of the pleadings and the evidence before the Lower Court, especially the admissions by them, that goods were supplied to them, the findings of the Lower Court that the respondent failed to prove his claim of N178,659,445.00 cannot be correct in law. Counsel did urge that issue 1 be resolved against the appellants.
Without much ado, let me dispose of the issue of “non-suit” which was introduced into the judgment of the Lower Court by the learned counsel to the 1st respondent in his brief of argument on page 5 thereof, per paragraph (2.6). I am in agreement with learned counsel to the appellants that the issue of “non-suit” was not considered by the learned trial Judge in the judgment of the Lower Court. It was introduced by respondent’s counsel in the brief of argument as could be seen on page 5 paragraphs 2-6 thereof. Even if the issue “non-suiting” was raised by the parties or the Lower Court, some could not have been granted in that there was no such provisions in the Kano State High Court (Civil Procedure) Rules, 1988 to have warranted the non-suiting of the suit by the Lower Court. The law is trite, a Court can only make an order of non-suit if such has been provided for by the Rules of Court. See Faleye v. Otapo (1995) 2 SCNJ P. 195 @ 2015. The issue of non-suit was not considered by the learned trial Judge in his
judgment. If such an issue ever arose, the Court ought to have invited learned counsel of both parties to address the Court on same before the Court can non-suit, the parties or not. See Aminu v. Alade (2011) All FWLR (Pt. 595) P. 230 @ 268.
The law is settled, where a case or suit is heard on the merit, with evidence adduced, the only verdict to be arrived at is either dismiss or strike out same. Non-suit cannot be appropriate to make when the Courts finds that the case of the claimant has not been proved or established by cogent evidence. See Ogbecline v. Onadixe(1983) 1 NSCC P. 211 @ 231.
Now, did the respondent proffer credible and cogent evidence proving the claim of N178,659,445.00K being the value of goods supplied to the appellants. A resort to the pleadings and the evidence adduced at the Lower Court is imperative at this juncture. Paragraphs 7 to 10 of the statement of claim of the respondent (then plaintiff) are as follows:
7. The claimant avers that the 1st and 2nd defendants are also to provide residence, office, warehouse and some staff for the business and sell the claimant’s materials in their name.
8. The claimant avers that in performance of the said agreements, the claimant gave goods to the 1st and 2nd defendants in the office and warehouse provided by the 1st and 2nd defendants for sale in the name of the 2nd defendant but on behalf of 1st defendant.
9. The claimant avers that the 1st and 2nd defendants in pursuance of the said agreement, supplied and delivered goods to their sale outlets in Kantinkwari Market manned by the 3rd to 7th defendants who are their boys/agents and continued giving them goods to sell and remit the cost value.
10. The claimant avers that the 1st and 2nd defendants continued to give out goods to the 3rd to 7th defendants to sell at the 1st defendant’s sale outlets in Kantinkwari Market, Kano without remitting the value cost to the claimant (in the names of the 3rd to 7th defendants) in a cumulative debit balance of the sum of N178,659,445.00 (One Hundred and Seventy-Eight Million, Six Hundred and Fifty-Nine Thousand, Four Hundred and Forty-Five Naira) as follows:
(a) The 3rd defendant; Ismail Adamu, the sum of N97,714,888.00 (Ninety-Seven Million, Seven Million, Seven Hundred and Fourteen Thousand, Eight Hundred and Eighty-Eight Naira). The statement of account of the 3rd defendant showing his indebtedness which is attached and marked as exhibit J2 is hereby pleaded and shall be relied upon at the trial,
(b) The 4th defendant, Ibrahim Babaye, the sum of N8,873,309,00 (Eight Million, Eight Hundred and Seventy-Three Thousand, Three Hundred and Nine Naira). The statement of account of the 4th defendant showing his indebtedness which is attached and marked as exhibit J3 is hereby attached and shall be relied upon at the trial.
(c) The 5th defendant, Alhaji Garba, the sum of N27,892,170.00 (Twenty-Seven Million, Eight Hundred and Ninety-Two Thousand One Hundred and Seventy Naira). The statement of account of the 5th defendant showing his indebtedness which is attached and marked as exhibit J4 is hereby pleaded and shall be relied upon at the trial.
(d) The 6th defendant, Muhammad Kumurya, the sum of N11,874,000.00 (Eleven Million, Eight Hundred and Seventy-Four Thousand Naira). The statement of account of the 6th defendant showing his indebtedness which is attached as exhibit J5 is hereby pleaded and shall be relied upon at the trial.
(e) The 7th defendant, Alhaji Garba, the sum of N32,305,078.00 (Thirty-Two Million, three Hundred and Five Thousand, Seventy-Eight Naira). The statement of account of the 7th defendant showing his indebtedness which is attached and marked as exhibit J6 is hereby pleaded and shall be relied upon at the trial.
(f) Despite repeated demands made on both the 1st defendant and 2nd defendants and his boys/agents, theÂ defendants have refused, failed and or neglected to pay the said sum of N178,659,445,00 to the claimant and same is due and payable to the claimant by the defendants.”
Paragraphs 1 to 8 of the appellants’ (as the defendants) Amended Joint Statement of defence are these:
“1. The defendants admit paragraph 1, 2 and 3 of the statement of claim but assert that the 5th defendant resides and carried on business in Lagos State and that he is an independent marketer and agent of the claimant and the 1st defendant is responsible for supplying him goods on behalf of the claimant.
2. The defendants admit paragraphs 4, 5, 6, 7 and 8 of the statement of claim and also admit paragraph 9 of the statement of claim, subject to the assertion made in paragraph 1 above in respect of the 5th defendant.
3. The defendants deny paragraph 10 of the
statement of claim and deny the subparagraphs (a), (b), (c), (e) and (f) of the paragraph and assert that the account of the 1st and 2nd defendants with the claimant is not in debit balance of any sum of money as the value cost for all goods supplied were paid for by the 1st defendant into the claimant’s account and transferred to China.
4. That the statement of account of the 3rd, 4th, 6th and 7th defendants as presented and relied upon by the claimant in this matter, do not represent the true financial position of the defendants in their dealings with the claimant as the claimant deliberately refuse to acknowledge or get the payments made by the 1st defendant reflected on the accounts of his agents/customers.
5. The 1st defendant avers that he paid and caused various sums to be paid in US Dollars into account No. 5090168866 with Fidelity Bank and transferred to China in favour of the claimant to wit:
08-12-2010 $100,000 deposited by self
15-12-2010 $100,000 deposited by self
13-01-2011 $100,000 deposited by Alh. Ali
19-01-2011 $ 90,000 deposited by Garba
09-02-2011 $100,000 deposited by Alh. Ali
23-02-2011 $100,000 deposited by Alh. Ali
09-03-2011 $100,000 deposited by Alh. Ali
06-03-2011 $100 00O deposited by Alh. Ali
23-03-2011 $100,000 deposited by Alh. Ali
6. The aggregate sum deposited or caused to be paid by the 1st defendant into the Fidelity Bank Account No. 5090168866 from the 08-12-2010 to 23-03-2011 is $890,000 (Eight Hundred and Ninety Thousand USD). The various payments mentioned in paragraph 5 above are reflected on page 2-4 of the statement of account and marked for easy reference. The said statement of account will be found upon during the trial of this matter. The same is attached and marked Exhibit A.
7. That another sum of $100,000 was paid into another Fidelity Bank account No.5090768938 with account name: Mustapha Abdullahi Ado is the 1st defendant’s agent and the said sum was transferred to China in favour of claimant on 17-2-2011 and the same amount was deposited by one Alh. Ali. The statement of account will be relied upon during the trial of this matter. The same is marked EXHIBIT A1. The payment appearing on page 2 of the statement is also marked for easy reference.
8. That the total amount paid by the 1st defendant referred to in paragraph 5 and 7 above is $990,000 equivalent to N150,480,000 (One Hundred and Fifty Million, Four Hundred and Eighty Thousand Naira only) at the rate of N152 per Dollar. The same total sum represents remittances or cost value of the goods supplied to the 1st defendant’s agents/customers.”
The respondent (as the plaintiff) at the Lower Court called only one witness who testified in support of his claim of N178,658,445.00K. The evidence of the sole witness have been recorded on pages 139 to 143 of the printed record of appeal. The material part of the evidence of Isyaku Bashir, the sole witness, are on pages 139 to 141 of the record of appeal, which are hereunder reproduced:
“PW1: Male/Muslim/Affirmed/S/Hausa my names is Isyaku Bashir I live at No.54 Ibrahim Taiwo Road Kano.
I am a businessman, I am 43 Years old. I know the 3rd defendant and the 2nd defendant is my former company I also know the 3rd to 4th and 7th defendant I dont know the 5th and 6th defendants I made a statement on oath 7/17/2012 and 12/11/2012 which I apply to adopt as my evidence in this case.
In my statement dated 7/11/2012 at paragraph 5 I made reference to an agreement dated 2/3/2004.
Francis: I seek to tender the document into evidence
Mu’az: No objection
Court: The agreement letter between B.A.I.B. International Ltd. And Jing Tex Nig. Ltd. dated 2/3/2004 is admitted into evidence as exhibit A.
PW1: In paragraph 11 (a-e) 17 and 18 of the statement dated 7/11/2012 I made reference to certain document.
Francis: I apply to tender the documents in evidence,
Mu’az: No objection.
Court: The bundles of statement of account five in number are admitted into evidence as exhibit B1 B5. The letter of demand dated 13/10/2017 is admitted as exhibit C and the letter dated 27/10/2010 from the firm of Ibrahim Mu’az & Co to Tajuddeen A. O. Funsho is exhibit D.
PW1: In paragraph 6 of the statement dated 12/11/2012. I made reference to an agreement.
Francis: We apply to tender the agreement into evidence.
Mu’az: The document sought to be tendered has not been made available to me like others. I am just seeing it the 1st time.
Francis: I seek to withdraw the document.
Mu’az: No objection.
Court: Withdrawal of the document is
Sign: Hon. Judge
The witness made statement on oath on the 7th day of December, 2012, which can be found on pages 76 to 80 of the record of appeal. The witness’s statement on oath was adopted by the witness when he testified before the Lower Court on the 3rd of December, 2012. Exhibits B1-B5 which were admitted in evidence through the witness are bundles of statement of accounts of payments made by the appellants to the respondent. The respondent did not adduce evidence to show how the amount of N178,659,445,000 being what the appellants owed him was arrived at. It is to be noted that the appellants have not denied the existence of the transaction with the respondent. What was in dispute at the Lower Court was the amount of money that was claimed as due to the respondent. The appellants asserted that they paid certain sums of money into the respondent’s account. That if the sums of money paid by each of them was considered or taken into account, the claim of the respondent cannot be N178,659,445.00K.
The law is trite in a claim for unpaid debt or loan or for any other repayment of sums of money in a transaction, a party relying on statement of Account to support his case must not only tender the statement of Account but must also adduce oral evidence linking the statement of account with the actual payments made showing clearly what was owed, what was paid and the balance of the unpaid sums of money. The Supreme Court in dealing with a similar situation in the case of Bilante International Ltd v. NDIC (2011) All FWLR (Pt.598) P.804 @ 818 819, where documents which were statements of Accounts were tendered and admitted in evidence to prove what was owed, without oral evidence explaining how the amount claimed was arrived at, held that:
“The defendant counter claimed for the sum of N13,050,002.79K (Thirteen Million Fifty Thousand and Two Naira Seventy-Nine Kobo) being debt outstanding in the plaintiff’s accounts with the bank. The contention of the defendant is that there was no sufficient denial of the debt in issue requiring proof by viva voce evidence The defendant merely tendered exhibit 12 series – the statement of account but did not adduce oral evidence to put same in proper perspective so as to establish the claim.
The case of John Orekie Anyako v. African Continental Bank Ltd cited by the learned counsel for the cross respondent is on all fours with the instant appeal. Therein the plaintiffs tendered exhibit C – statement of account therein and called a witness who did not know anything about the transaction. Fatayi-Williams, JSC (as he then was) pronounced that they know or ought to have known right from the beginning that in order to succeed they had to prove how the debit balance claimed from the defendant was arrived at.
The appellant disputed the alleged indebtedness and maintained that on the contrary, there should be a credit balance of N800,009.00 (Eight Hundred Thousand Nine Naira) in its account. The respondent’s bank ought to know that in order to succeed they had to demonstrate through oral evidence by an official who is familiar with the accounts how the debit balance claimed was arrived at. The Court below was correct in the stance taken by it.” (Underlining for emphasized).
In Nagebu Company (Nig) Ltd v. Unity Bank Plc (2013) All FWLR (Pt.698) @ 881, it was held that:
“The appropriate method used by a lender to establish the indebtedness of a borrower is through entries in its books and these entries are usually constituted into a statement of account and which represents secondary evidence of the entries in the lender’s book. A Statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account should adduce both documentary and oral evidence explaining clearly the entries therein to show how the overall debit balance was arrived at. Where there is a dispute on the indebtedness, the party cannot just toss and dump before the Court the statement of account in proof of the indebtedness of the customer for the overall debit balance therein, it must demonstrate through oral evidence given by an official who is familiar with the accounts, how the debit balance was arrived at.
In Dr. Vincent Ogini v. Skye Bank Plc, CA/K/81/2016, delivered on 10/4/2017 (unreported), this Court per Okojie J.C.A held that a statement of account cannot on its own amount to proof of liability of the debit balance of a customer account. In order for a claim of a
debt outstanding in the customer’s account with its banker to succeed, the banker has to prove how the debit balance claimed from the customer was arrived at. The bank has to demonstrate this through documentary and oral evidence given by an official who is familiar with the accounts. By just tendering the statement of accounts without adducing oral evidence to put the exhibit in proper perspective so as to establish the claim, the claim is not proved. See Bilante International Ltd v. Nigerian Deposit Insurance Corporation (2011) 15 NWLR Part 1270 page 407 at 429 para A-B per Fabiyi JSC; Biezan Exclusive Guest House Ltd v. Union Homes Savings and Loans Ltd(2011) 7 NWLR Part 1246 page 246 at 286 para E-H per Awotoye JCA; Nagebu Co. (Nig) Ltd v. Unity Bank Plc(2014) 7 NWLR Part 1405 page 42 at 84 para E-H per Abiru JCA.
The respondent did not adduce oral evidence to explain how the sum of N178,659,445.00K was arrived at as outstanding against the appellants. Exhibits B1-B5, the statement of accounts, which the respondent relied on to establish its claims were not credible nor cogent without oral evidence to prove the claim of the respondent. The learned trial Judge of the Lower Court was therefore right when he found and held on page 588 of the record of appeal thus:
“Exhibits B1-B5 the statement of account of indebtedness of the 3rd, 4th, 5th, 6th and 7th defendants exhibited by the claimant are not self-explanatory as to how the claimant arrived at the various amount claimed against the defendant. The claimant ought to know that in order to succeed, it has to show by an official of its company who is familiar with the account how the debit balance claimed was arrived at more so when the defendants denied this indebtedness. This the claimant has failed to do and it is not the duty of the Court to engage in a voyage of discovery. There is no way the Court can determine when no explanation is made as to how the figures arrived at.”
The learned counsel to the appellants did submit that the Lower Court ought to have dismissed the claim of N178,659,445.00K, having found and held that same was not proved by the evidence adduced by the respondent. Counsel relied on the case of Military Governor of Ondo State v. Kolawale (2008) MJSC vol. 9 P. 203 @ 215 to buttress the submission supra. I totally agree with learned counsel to the appellants, that the learned trial Judge of the Lower Court, having found and held that the evidence adduced by the respondent did not prove the claim of N178,659,445.00K should have dismissed same. The law is trite, where a party in a civil proceedings fails to prove his claim by credible and cogent evidence after a full trial, the only order to be made is to dismiss same. This preposition of the principles of law has been enunciated by the Apex Court in the case of Military Governor of Ondo State v. Kolawole (2008) MJSC vol. 9 P. 203 @208, wherein Muhammad, JSC; had this to say:
“…The Lower Court I observe, failed to state the consequential order after refusal of relief No. 3, whether it ought to have been dismissed or struck out. Be that as it may, the established practice is that where full hearing of a case is taken to its logical conclusion, and where the claim or relief is found to be lacking in merit, the consequential order that follows is that of dismissal of the claim or relief see Okpala v. Ibeme (1989) 2 WLR (Pt.702) 208; Olayiole v. Ogo (1969) 1 All NLR 281; Green v. Green (1987) 3 NMLR (Pt. 10) 437; Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370.”
The Lower Court did not dismiss the claim of N178,659,445.00K by the respondent. This Court can do so by virtue of Section 15 of the Court of Appeal Act. In the result, acting under the aforesaid provisions of the Court of Appeal Act, I make an order dismissing the claim of N178,659,445.00K for having not been proved by credible and or cogent evidence. I resolve issue 1 in favour of the appellants.
ISSUES 2 AND 3
Whether the learned trial Judge of the Lower Court lacked the jurisdiction in entertaining the respondent’s (claimant’s) claim relating to supply of minerals in form of precious stones; and therefore lacked the jurisdiction in granting the claim of N36,200,000.00K to the respondent.
Muazu Esq., did submit that in civil proceedings, jurisdiction to entertain a suit or matter is determined by the nature of the claims disclosed in the pleadings, that is, the statement of claim of the claimant. That having regard to the averments contained in paragraphs 11 and 12 of the respondent’s statement of claim, which involved the supply of precious stones, being a mineral, the Lower Court lacked the
jurisdiction in entertaining same by virtue of Section 251 (1) (n) of the 1999 Constitution (Amended). The cases of Nigeria Liqudfield Natural Gas Ltd v. Green (2010) All FWLR (Pt.530) P.1300 @1311 and Sirpi-Alusteel Const. Ltd(2008) 1 NWLR (Pt.1067) P.128 @ 148 cited to buttress the submissions supra.
On the granting of the claim of N36,200.00K in favour of the respondent, learned counsel submitted that the Lower Court did not evaluate the evidence before it properly. That, if it had done so, it would not have ascribed probative value to it than that of the 1st appellant. Counsel did urge that this Court can evaluate the evidence and arrive at a just decision since the Lower Court failed to do so. The cases of Hamza v. Kure (2010) 3 SCNJ P. 554 @ 570 and Ogundepo v. Olumesan (2012) All FWLR (Pt. 609) P. 1136 @ 1145 cited to reinforce the submissions supra. Learned counsel further referred to the responses of PW1 under cross-examination and submitted that by reasons thereof, the said witness was not competent to testify on the existence or otherwise of a contract to supply precious stones by 1st appellant to the respondent. That the respondent failed to adduce cogent evidence on the existence of contract to supply precious stones, the Lower Court ought not have granted the claim of N36,200,000.00K by the respondent. The case ofOwoo v. Edet (2012) All FWLR (pt. 642)P. 1791 @ 1803 cited and relied on in reinforcement of the submissions supra.
On the documents tendered by the 1st appellant, which were admitted in evidence, counsel did content that same are more credible than the oral testimony of the witness for the respondent. That documentary evidence is more reliable than oral evidence in that it is the hanger on which the credibility of oral evidence is determined. That if the Lower Court had properly evaluated the evidence of the 1st appellant particularly exhibits A, J, J1, J2, K, L, M, N and O, it could have arrived at a different decision. This Court have been urged to evaluate the evidence adduced by the respondent and the 1st appellant, in order to arrive at a just decision. That an appellate Court can evaluate evidence on appeal, if the need arises in order to do justice, has the support in the case of Salami v. Ajadi (2012) All FWLR (Pt. 615) P. 242 @ 246. In conclusion, learned counsel did urge that, issues 2 and 3 be resolved in favour of the 1st appellant, and make the following orders:
“(a) Declaration that the trial Court lacked the jurisdiction to hear and determine the claimant’s claim for N36,200,000.00 being the balance for supply of minerals in form of precious stone.
(b) In the alternative to relief (b) above, an order of the Court setting aside the judgment of the trial Court in respect of the claim of N36,200,000.00K relating to the issue of supply of precious stone.”
Ithunokha Esq., of learned counsel to the respondent, did concede that the Lower Court has no jurisdiction to hear and determine any matter or causes relating to mining, exploration or acquisition and production of Mines or Minerals by virtue of Section 251 (1) (N) of the 1999 Constitution (amended). However, Learned counsel submitted that the claim of N36,200,000.00 is related to breach of simple contract involving money had and received by the 1st appellant, but there was failure to comply with the terms of the contract which led to the institution of the action. That the High Court, the Lower Court, had the jurisdiction in entertaining the claim of the respondent. That the principles of law enunciated in the case of SPD (Nig) Ltd v. Sirpi-Alusteel Const. Ltd,cannot be applicable to the instant case because the cause of action has nothing to do with exploration, production or mining of minerals.
It is counsel’s further contention that where money has been received by a party for the doing of a thing but that had not been performed or carried out as per the contract agreement, the defaulting party is liable to repay the money he received to the giver. The case of Chartered Bank Ltd v. FAT Bank Ltd & ors (2005) LPELR 11350 (CA), cited to reinforce the submission supra. Counsel did submit that the Lower Court was therefore right in entertaining the claim of the respondent to recover the sum of N38,000.00 which the 1st appellant received, but failed to perform the contractual agreement. The case FCE v. Akinyemi (2008) 15 NWLR (Pt. 1109) P.21 @ 52 – 53 and Shell (Nig) GAS Ltd v. PEC Oil & GAS Ltd (2011) All FWLR (Pt.580) P.1350 cited in aid.
On whether the respondent did adduce credible evidence proving the claim of N36,200,000.00, Counsel submitted that the appellant had admitted
receiving the said sums of money. That what has been admitted requires no further proof. Counsel did urge that the claim of N36,200,000.00 granted to the respondent by the Lower Court be sustained, accordingly.
On the issue of whether the Lower Court, had the jurisdiction in entertaining the claim of N38,000.00 being the price for supply of precious stones to the respondent by the 1st appellant, I think, the starting point, is the provisions of Section 251(1)(a) of the 1999 Constitution (amended). The said section provides thus:
“257(7) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.
(a) mines and minerals (including oil fields oil mining, geological surveys and natural gas.???
Jurisdiction, which is the authority a Court of law has to decide matters that are litigated before it, is very crucial in the process of adjudication. It should be determined first and at the earliest opportunity as it is very fundamental. If a Court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio, no matter how well conducted and decided. A defect in competence is not only intrinsic but also extrinsic to the entire process of adjudication. (Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508 referred to. (P.601, paras. F-G).
The jurisdiction of a trial Court is determined by the plaintiff’s claim as endorsed in the writ of summons and the statement of claim. Thus, in the determination of the jurisdiction of a Court what the Court is enjoined to look closely at are the writ of summons and the statement of claim of the plaintiff where the action is commenced by a writ of summons or the summons and the affidavit filed in support of the summons where it is commenced by originating summons. This is so since it is the plaintiff who initiated his complaint before the Court.
See Oloba v. Akereja (1988) 3 NWLR (Pt.84) P.508; Adeyemi v. Opeyori (1976) 7 ??? 10 SC 31; Mustafa v. Governor Lagos State (1987) 2 NWLR (Pt. 580) 539; Tukur v. Governor Gongola State (1989) 4 NWLR (Pt.117) P. 552 and OHMB v. Garba (2002) 14 NWLR (Pt.788) P.538.
In determining whether the Lower Court had the jurisdiction in entertaining the claim of N38,000,000.00 being the price of precious stones which the 1st appellant failed to supply to the respondent, the pleadings of the respondent as claimant at the Lower Court is imperative. In paragraphs 11, 12 and 18(2) the respondent pleaded those facts:
“11. The claimant avers that whilst the business of the agency was going on, the 1st defendant approached the claimant to supply it with minerals in form of precious stones for which the claimant paid to the 1st defendant the sum of N38,000,000.00 (Thirty Eight Million naira) for supply of the precious stones.
12. The claimant avers that the 1st defendant only supplied the claimant precious stones worth N1,800,000.00 (One Million Eight Hundred Thousand Naira) leaving, a balance of N36,200,000.00 (Thirty Six Million, Two Hundred Thousand naira) still outstanding till date in favour of the claimant against the 1st defendant.
18(2) Against the 1st defendant:
(a) The sum of N36,200,000.00 (Thirty Six Million, Two Hundred Thousand Naira) being balance of money collected from the claimant for supply of precious stones.”
The claim of N36,200,000.00 by the respondent, no doubt is connected to or pertaining to or involves the supply of minerals in form of precious stones. This Court in the case of SPDC (Nig.) Ltd v. Sirpi-Alusteel Const. Ltd (2008) 1 NWLR (Pt.1067) P.128 @ 148, interpreted and applied the provisions of Section 251(1)(A) of the 1999 Constitution. Galadima JCA (as he then was) had this to say:
“Section 251 (1) (n) of Constitution provides that the Federal High Court shall have and exercise exclusive jurisdiction in “Mines and Minerals (including Oil fields, Oil mining, geological surveys and natural Gas). Section 7 (1) (n) of the Federal High Court Act is similarly worded as Section 251 (1) (n) of the Constitution. S.7 (3) stipulates that S.7 (1) (n) shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to mines and minerals.”
The law is settled, where the claimant’s claim is related to, connected to, pertaining to or involves minerals, it is only the Federal High Court that can entertain and determine
such claim. High Court of a State has no jurisdiction to hear and determine such claim. See Nigeria Liquefield Natural Gas Ltd v. Green (2010) All FWLR (Pt. 530) P. 1300 @ 1311 – 1314.
The law is trite, a Court of law is competent to hear and determine any suit filed before it when:
(a) it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other;
(b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by the due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.
See Elagwu v. Tong (2016) 14 NWLR (Pt. 1532) P.165 @ 190.
The subject-matter of the claim of the respondent for the sum of N38,000,000.00 being for the supply of precious stones, a form of mineral, comes within the ambit of the provisions of Section 251(1)(n) of the 1999 Constitution (amended). The Lower Court, being a High Court of Kaduna State, it had no jurisdiction in entering the claim of the respondent’s for the supply of precious stones, a kind of minerals.
The legal consequence of any judicial proceedings conducted by a Court of law without the requisite jurisdiction to adjudicate over the matter is that the proceedings and products or result thereof, are in law, pure waste of judicial time and resource, and an exercise in futility because they are null, void and of no legal effect whatsoever, ab initio. In the absence of the requisite jurisdiction, a Court of law cannot conduct proceedings in a case howsoever for the judicial power and authority to do so would be lacking, as a foundation, upon which they could be conducted or could have otherwise been well conducted. (Madukolu v. Nkemdilim (1962) 2 SCNLR, 341; A-G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552, Funduk Eng. Ltd v. Mc Arthur (1995) 4 NWLR (Pt.392) 640; Management Ent. Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179.
Jurisdiction is the life-wire of adjudication which is constitutionally conferred on the Courts. Where a Court is bereft of jurisdiction, any proceeding concluded without such power is an exercise in futility, therefore a nullity, liable to be set aside. See Eliagwu vs. Tons (2016) 14 NWLR (Pt. 1532) P. 165 @ 190; Okarika vs. Samuel (2013) 7 NWLR (Pt. 1382) P. 19 and SLB Consortium vs. NNPC (2011) 9 NWLR (Pt.1252) P.317.
The proceedings of the Lower Court relating to the claim of N36,200,000.00 for being the balance of sum of money, the 1st appellant had and received for the supply of precious stone, a firm of mineral; (see paragraph 11, 12 and 18, (2) (a) of the statement of claim of the respondent (as claimant) have been conducted without jurisdiction. Any proceedings so conducted without jurisdiction is null and void, and subject to be set aside. Consequently, the proceedings of the Lower Court relating to the claim of N36,200,000.00 for being balance for money had and received by 1st appellant from the respondent is hereby set aside. The decision and order of the Lower Court on the granting or awarding of the sum of N36,200,000.00 to the respondent is hereby set aside. I consider it otiose to consider Issue 3 in view of setting aside of the proceedings of the Lower Court relating to the claim of N36,200,000.00. Having resolved Issue 1 and 2 in favour of the appellant, the judgment of the Lower Court delivered on the 21st of January, 2013 in respect of the claim of N178,000,000.00, having not been proved is hereby dismissed. Secondly, the Lower Court had no jurisdiction in entertaining the respondent’s claim of N36,200,000.00, for lack of jurisdiction. The granting of same to the respondent is hereby set aside. The appeal therefore succeeds in part as enunciated supra. I make no order as to costs.
By an order of 23rd of February, 2016, leave was granted to Jingtex Nigeria Ltd, to cross-appeal against the judgment of the Lower Court delivered on the 21st of January, 2015 in suit No. KN/FICC/007/2011 on three (3) grounds. A lone issue has been distilled from the grounds of appeal for determination in the cross-appeal, which is thus:
“Whether the trial Lower Court was right when he failed to properly evaluate the evidence (oral and documentary) before it in arriving at the decision it reached by not entering judgment for the claimant in the sum of N178,659,445.00 claimed by the claimant/cross appellant.”(Distilled from grounds 1, 2 and 3 of the cross-appeal).
Ithunokha Esq, of learned counsel, did submit that
exhibit B1-B5, the statements of accounts, wherein the amounts of money to the cross-appeal have been indicated, which if added together, would be the total outstanding debit in each statement of Account. That the evidence of the cross-respondents is not only contradictory but intended to deny the cross-appellant’s claim against them. Counsel further adumbrated that the learned trial judge of the Lower Court failed to properly evaluate Exhibit E1 and F vis-a-vis the evidence of DW1 under cross-examination which highlighted or explained the contents of Exhibit B1-B5 that had the Lower Court properly appraised and evaluated the evidence adduced by the cross-appellant as the claimant, a different decision would have been arrived at in favour of the cross-appellant. Counsel did urge this Court to evaluate the evidence of the parties in order to arrive at a just and fair decision. That an appellate Court can evaluate evidence on appeal where a trial Court failed to do so has been reinforced by the decision of the superior Courts in the cases of In-time Connection Ltd. vs. Mrs Janentlchie(2009) LPELR-8772 CA-CAK/PH/79/2009; and Saleh vs. BON Ltd (2006) ALL FWLR (Pt.310) P.1600 @ 1611; Ezekwesili vs. Agbapuonwu (2003) FWLR (Pt.162) P.2016, and Garuba vs. Yahaya (2007) LPELR-1311(SC) (2007) 3 NWLR (Pt.1021) P. 390 cited to buttress the submissions supra. In conclusion, learned counsel did urge this Court to allow the cross-appeal for the reasons stated on page 25 of the cross-appellant’s brief, which are thus:
“(i) The failure of the Court below to enter judgment for the claimant in the sum of N178,659,445.00 was erroneous and pervasive thereby occasioned a miscarriage of justice in the light of the defence put up by the defendants/cross Respondents in that:
(ii) The Defendants admitted the claim by contending that they paid money into the account of the Claimant and transferred to China which claims the Defendants/Cross respondents could not and did not prove.
(iii) The defendant’s contended that payments made by them were not reflected in the statement of accounts (Exhibit B1-B5) and failed to prove this assertion.
(iv) The sum as $990,000.00 paid to Fidelity Bank Account Nos, 5090768866 and 5090168938 and purportedly transferred to China does not bear the name of the Claimant. A fact admitted by the DW1.
(v) The trial Lower Court failed to advert its mind to the said sum of N178,659,445.00.”
For the cross-respondents Muazu Esq, did content that the learned trial judge of the Lower Court properly evaluated the evidence before him in arriving at that the cross-appellant did not prove the claim of N178,659,445.00 against the cross-respondents. That though the cross-appellant relied on statement of accounts, Exhibits B1-B5, to prove its claims, these documents were not self-explanatory, therefore required further evidence from someone to expatiate or relate same showing how the claim of N178,659,445.00 was arrived at. That documents admitted in evidence to without adducing oral evidence from a witness who is well versed with the matter in dispute or controversy, cannot be cogent evidence to be relied on. The case of CPC vs. INEC (2013) ALL FWLR (Pt. 665) P. 364 and Nagebu Company Nig Ltd. vs. Unity Bank Plc (2013) ALL FWLR (Pt. 698) P. 881 cited to buttress the submissions supra.
On burden of proving the claim of N178,659,445.00, counsel contended that same was on the cross-appellant, and having failed to discharge such burden, the weakness of the defence cannot be the basis to allow the cross-appellant’s claims. The case of Kabiru vs. Mohammed (2010) ALL FWLR (Pt. 548) P. 978 @ 983 cited and relied on to reinforce the submissions supra. Concluding, learned counsel did urge that the sole issue be resolved against the cross-appellant for the reasons enumerated on pages 13-14 of the cross-respondents brief of argument, which are:
“(i) The learned trial judge properly evaluated the evidence adduced by the cross-appellant particularly exhibits B1 – B5 and made a specific and valid finding concerning the exhibits,
(ii) The cross-appellant failed to discharge the initial burden of proof in that it deliberately neglected to produce its Fidelity Bank Account to show how much the cross-respondent paid in that account.
(iii) The cross-appellant failed to call its official who is familiar and responsible for the accounts of the company to give oral evidence and put the accounts in proper perspective.
(iv) The cross-appellant failed to call any witness to explain how payments in its Fidelity Bank Account are transferred to exhibits B1-B5.”
The cross-appellant as the claimant
at the Lower Court called a sole witness who testified in support of his claim of N178,659,445.00 as what was due to it by the cross-respondents. The evidence of the witness has been recorded on pages 139-145 of the printed record of appeal. The relevant evidence of the sole witness are on pages 139 to 141 of the record of appeal. As to exhibit B1-B5 which was tendered through PW1 Issiyaka Bashir, to show the payments made by the cross-respondents were just dumped on the Court. The witness did not link them to the purpose for which they were tendered. The law is trite, it is not the duty of a trial judge to embark on a voyage of discovery to find out for what purpose a document has been tendered and admitted in evidence through a witness. It is the duty of the witness to show and demonstrate to the Court what the document is intended to prove or establish. The principles of law that a document should not just be dumped on the Court, but it must be linked to the issue in dispute or the intendment of its being tendered in evidence and, not for the learned judge to investigate what has been tendered for, has been lucidly enunciated in a litany of cases. For instance, in Onibudo vs. Akibu (1982) 7 S.C 60 @ 62, the Supreme Court Per Bello JSC (as he then was) (of blessed memory) said:
“It needs to be emphasized that the duty of Court is to decide between the parties on the basis of what has been demonstrated, tested, canvassed and argued in Court. It is not the duty of a Court to do cloistered justice by making enquiry into a case outside Court even if such enquiry is limited to examination of documents which were in evidence, when the documents had not been examined in Court and their examination out of Court disclosed matters that had not been brought out and exposed to test in Court.”
The Apex Court, also had the opportunity of restating the principles of law regarding the need for oral evidence to support documentary evidence in the case of CPC vs. INEC (2013) ALL FWLR (Pt.665) P.364 wherein Chukwenna Eneh J.S.C, renunciated thus:
“This issue has raised a pertinent question of the Court evaluating documents allegedly dumped on it where there is no oral evidence linking the document to the appellant’s case. It is significant that these documents as per exhibits P1-P201 have been tendered from the bar with the consent of both sides. The appellants contention is that they have been taken as read and that it is the duty of Court to appraise the document without more. I think the appellant has misconceived the law in this regard that where the documents so tendered are not examined in the open Court by oral evidence showing the purpose for tendered them, and thus linking them precisely to apart of the case of the appellant as per the pleadings of the petition.
Otherwise, there is no duty on Court to embark on a cloistered justice to examine them on its own outside the Court. Then Court is not supposed to do a party’s case for him. I am fortified for so holding by a plethora of cases including: Jang vs. Dariye; Anyanwu vsÂ Uzowuaka to mention but a few. To contend that the document speak for themselves thereof is not to appreciate that is the appellant’s duty to call direct evidence to support its case.”
The sole witness for the cross-appellant (PW1) just tendered exhibits B1-B5 without linking same to how the sum of N178,659,445.00 was arrived at. It was not the duty of the learned trial judge to examined the documents in order to arrive at a decision that the cross-respondents were owing the cross-appellant the sums of money which stood at N178,659,445.00. I am therefore in full agreement with the learned trial judge when he held on page 588 of the printed record of appeal that:
“Exhibits B1-B5 the statement of account of indebtedness of the 3rd-4th, 5th-6th and 7th defendants exhibited by claimant arrived at the various amount claimed against the defendants. The claimant ought to know that in order to succeed it has to show by an official of its company who is familiar with the account how the defendants denied this indebtedness. This claimant has failed to do and it is not the duty of the Court to engage in a voyage of discovery. There is no way the Court can determine when no explanation is made as to how the figures arrived at.”
Consequently, I resolve the sole issue in the cross-appeal against the cross-appellant. The cross-appeal therefore fails. The judgment of the Lower Court is hereby affirmed. I make no order as to costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: The Judgment of my learned brother, Ibrahim Shata Bdliya JCA has very lucidly set out
the facts of this matter. I am in agreement with the dismissal by my learned brother of the Respondent’s claim of N178,659,445.00 as having not been proved by credible evidence. This is in affirmation of the trial Judge’s finding that the said claim was not proved. Having so held, the trial Judge, possibly by inadvertence, failed to dismiss the claim, which failure my learned brother has remedied by the order of dismissal of the claim.
I am also in agreement with my learned brother’s affirmation of the judgment of the Lower Court dismissing the Cross Appeal.
On issues 2 and 3, whether the trial Judge lacked the jurisdiction to entertain the Respondent’s claim relating to the supply of minerals in the form of precious stones and granting the claim of N36,200,000.00 in favour of the Respondent, I have a divergence of opinion. My learned brother, overruling the Lower Court, held that the State High Court was divested of jurisdiction by the provisions of Section 251(1) of the 1999 Constitution.
Section 251 (1) and (n) provides as follows:
“251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters-
(n) Mines and minerals (including oil fields, oil mining, geological surveys and natural gas).”
The instant case, as submitted by the learned Counsel to the Respondent, Mr. Ithunokha, does not however relate to mining, exploration or acquisition and production of minerals, as contemplated by this section, but is merely a simple contract for money had and received by the 1st Appellant, I hold.
It has been held that a claim for simple contract or debt recovery is not a claim justiciable in the Federal High Court but in the State High Court. See the case of John Shoy International Ltd v Federal Housing Authority (2016) 14 NWLR Part 1533 Page 437 at Page 448 Para F-G per Ogunbiyi JSC. See also Federal College of Education v. Akinyemi (2008) 15 NWLR Part 1109 Page 21 at 52-53 Para H-A per Okoro JCA (as he then was).
Reasoning likewise, in a case in which a similar objection was made with regard to the jurisdiction of the Federal High Court in admiralty actions, the Supreme Court made it clear that the mere fact that the transaction between the parties giving rise to the Plaintiff’s claim involved the conveyance of goods by sea or air does not bring the claim within the admiralty jurisdiction of the Federal High Court. See B. B. Apugo & Son Ltd v Orthopaedic Hospital Management Board (2016) 13 NWLR Part 1529 Page 2oo at 245 – 246 Para G-B per Kekere Ekun JSC.
Thus, the mere fact that the cause of action involves minerals and precious stones, without more, does not, without more, divest the State High Court of jurisdiction to entertain the Claim for N36,200,000.00 owed in respect of the supply of precious stones, I hold.
The Respondent’s claim against the 1st Appellant being for the indebtedness of the 1st Appellant in respect of precious stones supplied to him by the Respondent, is justiciable in the State High Court, I hold.
I thus hold this award by the trial Judge in the sum of N36,200.00 in favour of the Respondent and against the 1st Appellant to be proper and I affirm the same Save for this dissension, I am in agreement, as aforesaid, with the lead judgment of my learned brother.
AMINA AUDI WAMBAI, J.C.A.: I was obliged the draft copy of the Judgment of my learned brother, IBRAHIM SHATA BDLIYA, JCA and I am in agreement with his sound reasoning and conclusion that the main appeal be allowed in part and the Cross-Appeal be dismissed. I adopt same as mine. I also allow the main appeal and dismiss the Cross-Appeal.
Ibrahim Muazu. Esq- For Appellants
F. O. Ithunokha, Esq.-For Respondent