IN THE COURT OF APPEAL
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
ON FRIDAY, 9TH MARCH, 2018
BEFORE THEIR LORDSHIPS:
JIMI OLUKAYODE BADA J.C.A
MOORE ASEIMO ABRAHAM ADUMEIN J.C.A
MUDASHIRU NASIRU ONIYANGI J.C.A
SUIT NO: CA/B/199/2010
BETWEEN UGHELLI SOUTH LOCAL GOVERNMENT COUNCIL – APPELLANT(S) AND CHIEF JONATHAN EDOJAKWA (JP) – RESPONDENT(S)
LEAD JUDGMENT DELIVERED BY JIMI OLUKAYODE BADA, J.C.A.
Facts of the case
CHIEF Jonathan Edojakwa (now the respondent) was awarded contract to clear weeds at Atawhim, Egbori, Ulorokor, Uloro-Bukuru and Dakori creeks at Okuama Town in Ughelli South Local Government Area of Delta State of Nigeria by Ughelli South Local Govt Council (now Appellant) to the tune of (N35,900,900.00) Thirty-Five Million, Nine Hundred Thousand, Nine Hundred Naira. The contract was duly executed by the Plaintiff sometime in July 2002 but despite repeated demands, Ughelli South Local Govt Council failed, refused and neglected to pay. Hence, Edojakwa filed a Writ of Summons against the council at the trial Court for the contract sum as well as interest.
At the hearing before the trial court, the Respondent testified and called one witness while the Appellant called three witnesses. The trial Judge took advantage of Section 223 of the Evidence Act Cap 112, Laws of the Federation 1990 to raise the issue as to “certain facts” concerning Exhibits “A”, “D”, “E”, “G”, “J”, “J1”, “K”, “L” and “L3” and called on Counsel for the parties to elect either to address the Court on the Exhibits or to call further evidence. Both Counsel elected to address the Court rather than call further evidence. At the conclusion of hearing, the learned trial Judge entered Judgment in favour of the Respondent (then Plaintiff) for the sum of (N35,900,900.00) Thirty-Five Million, Nine Hundred Thousand, Nine Hundred Naira with (N5,000.00) Five Thousand Naira costs in favour of the Respondent.
Aggrieved by the decision of the trial Court, Appellant filed this Appeal.
The contention of the Learned Counsel for the Appellant in this appeal is that the lower court lacked the jurisdiction to entertain and determine the Respondent’s suit as the Respondent has failed to prove that pre-action notice was served on the Appellant.
Issues for determination
The issues distilled by the court for the determination of this appeal are as follows:-
(1) Whether the lower court lacked jurisdiction to entertain the suit. (Grounds 8 and 9).
(2) Whether in its interlocutory ruling refusing the Appellant’s application to recall DW2 and DW3, the lower court was inconsistent and wrong. (Grounds 12, 13, 17 and 18).
(3) Whether the lower court was right when it held that the Respondent proved his claims against the Appellant. (Grounds 1, 7, 10, 14, 15 and 16).
Appellant’s contention
On issue 1 -Whether the lower court lacked jurisdiction to entertain the suit
The major contention of the Appellant is that the lower court lacked jurisdiction to entertain and determine the Respondent’s suit as the Respondent failed to prove that he served pre-action notice on the Appellant. He referred to affidavit of refutal wherein DW1 denied receiving or signing as the recipient of Exhibit “G” (the acknowledged copy of the pre-action notice).
It was further submitted that the trial court was wrong when it shifted the onus on the Appellant to prove that it did not receive Exhibit “G”. It was appellant’s contention that the absence of the name of the person who received Exhibit “G” simply means that the Respondent failed to adduce credible and cogent evidence to prove that he delivered the document to the Appellant. He, therefore, submitted that the trial court was wrong to have applied Section 149(d) of the Evidence Act against the Appellant in the circumstances of this case. He went further that the trial Judge failed to evaluate properly the documentary evidence before the court, he therefore, urged this court to evaluate the evidence in order to give necessary consequence to the evidence on record and arrive at a just decision.
On issue 2 – Whether in its interlocutory Ruling refusing the Appellant’s application to recall DW2 and DW3 to give evidence, the lower court was inconsistent and wrong.
Appellant referred to the fact that it was the trial court that suo motu directed the parties to either call further evidence or address the court with regard to “certain facts” which the court observed on all exhibits tendered by the Respondent; in response to which both Counsel agreed to address the court.
The Appellant submitted that the trial court’s call for further evidence or address instead of delivering its Judgment, already amounted to the court calling for the parties to re-open the case and that the trial court was being inconsistent when it refused the Appellant’s application to recall the witnesses. He added that the interest of justice is the paramount consideration in the determination of whether the court should grant an application for recall of witnesses in a civil case. He relied on the case of S.D.C. CEMENTATION NIG LTD VS NAGEL & CO. LTD (2003) 4 NWLR Part 81 Page 611 at 635.
On issue 3 – Whether the lower court was not wrong when it held that the Respondent proved his claims against the Appellant.
The Appellant submitted that the trial court was wrong when it held that the Respondent proved his claim against the Appellant. He went further that the trial court misplaced the burden of proof and also failed in its evaluation of the evidence, with the result that its Judgment was grounded on perverse findings of fact.
It was further submitted that the trial court’s Judgment is a miscarriage of justice given the fact that it was the same court that dismissed the Appellant’s application to recall two of his witnesses for the purpose of tendering their specimen signatures.
Respondent’s contention
On issue 1 -Whether the lower court lacked jurisdiction to entertain the suit
In response to the submission of the Appellant, the Learned Counsel for the Respondent referred to Exhibit “G” and submitted that from the testimony of DW1, it was not necessary for the person who received the mail to have his name endorsed as the receiver.
He also stated that the defence put forward by the Appellant was that Exhibit “G” was forged or fraudulently obtained and that the Exhibit was not received by the Appellant. To the Respondent, this defence put forward by the appellant, places a great burden on the Appellant to specifically plead fraud or forgery with particulars and to also prove beyond reasonable doubt the fraud or forgery. He contended that the Appellant failed in that respect.
On issue 2 – Whether in its interlocutory Ruling refusing the Appellant’s application to recall DW2 and DW3 to give evidence, the lower court was inconsistent and wrong.
Respondent stated that the trial Judge took advantage of Section 223 of the Evidence Act Cap 112, Laws of the Federation 1990 to raise the issue as to “certain facts” concerning Exhibits “A”, “D”, “E”, “G”, “J”, “J1”, “K”, “L” and “L3” and called on Counsel for the parties to elect either to address the Court on the Exhibits or to call further evidence. But both Counsel elected to address the court rather than call further evidence. And both Counsel addressed the Court extensively on the signatures on the exhibits, therefore he submitted that the Learned Counsel for the Appellant is foreclosed from complaining that the trial Judge refused to let the Appellant recall his witnesses.
It was contended on behalf of the Respondent that the application to recall was for the purpose of the DW2 and DW3 giving further oral evidence and tendering their specimen signatures obviously in reaction or reply to the Respondent’s address at the lower Court. And that this would have been overreaching to the Respondent.
The Learned Counsel for the Respondent finally urged that this issue be resolved in favour of the Respondent.
On issue 3 – Whether the lower Court was not wrong when it held that the Respondent proved his claims against the Appellant.
The Respondent referred to Exhibit “B” i.e. the contract agreement between the parties. It was submitted that Exhibit “B” embodied all the terms, conditions and stipulations of the contract between the parties and constitutes a binding contract. He went further that the fact that the Respondent did not tender the letter of acceptance which was pleaded is immaterial once Exhibit “B” was tendered and admitted.
The Respondent referred to the submission of Counsel for the Appellant that the Exhibits tendered by the Respondent at the trial court were forged or fraudulently obtained. But he contended that the learned trial Judge had evaluated the evidence put before the court carefully before it came to its conclusion that the Respondent proved his claim against the Appellant.
He urged this court not to disturb the finding of fact made by the trial Judge who had singular opportunity of listening to the witnesses and watching their demeanor.
Court’s findings
On issue 1 -Whether the lower court lacked jurisdiction to entertain the suit
In respect of this issue, the court held that non-compliance with the requirement of a pre-action notice does not take away the right of access to the court from the litigant; neither does it defeat his cause of action. It is merely an irregularity which renders the action incompetent and puts the jurisdiction of a court on hold pending compliance with the pre-condition.
The court went further to say that the onus of proof always rests on the party who would fail if no evidence at all or no more evidence, as the case may be, is given on either side. However, by Section 133 (2) of the Evidence Act 2011, the onus shifts to the adverse party once the party asserting his right has adduced sufficient evidence that ought reasonably to satisfy the court that the fact sought to be proved has been established.
That although the initial burden of proving that Exhibit “G” was served on the Appellant rests on the Plaintiff i.e. the Respondent herein, as soon as Exhibit “G” was tendered showing prima facie that it was received by the Appellant, the burden then shifted to the Appellant to disprove it. Further, that the contention of the Appellant that Exhibit “G” was forged or fraudulently obtained and that it was not received by the Appellant places a greater burden on the Appellant to prove the forgery or fraud. The court noted that a careful perusal of the record of appeal and submission of both Counsel revealed that the Appellant was unable to prove the fraud or forgery.
On issue 2 – Whether in its interlocutory Ruling refusing the Appellant’s application to recall DW2 and DW3 to give evidence, the lower court was inconsistent and wrong
It was the court’s position that since the learned trial Judge raised the issue as to “certain facts” concerning Exhibits “A”, “D”, “E”, “G”, “J”. “J1”, “K”, “L” and “L3” and called on Counsel for the parties to elect either to address the court on the Exhibits or to call further evidence wherein both Counsel elected to address the court rather than call further evidence; both Counsel duly addressed the court extensively on the issue of signatures on the Exhibits. And that since the Appellant’s Counsel had elected to orally address court on the issue of the signatures rather than call evidence, he is foreclosed and estopped from complaining that the learned trial Judge refused to let the Appellant recall his witness as he cannot eat his cake and have it at the same time or have a bite of the cherry twice.
The Court held further, that since litigation cannot continue indefinitely, he learned trial Judge was right when he refused appellant’s application to recall DW2 and DW3 after the case has been fixed for Judgment and at the close of final written addresses and further addresses at the instance of the Court on the issue of the Exhibits. It is also an attempt to overreach the Respondent as rightly observed by the learned trial Judge.
ON ISSUE 3 – Whether the lower Court was not wrong when it held that the Respondent proved his claims against the Appellant.
Upon a careful review of the evidence before the trial Court by both parties revealed that the learned trial Judge properly evaluated the evidence of the parties before he arrived at the conclusion reached. And since it has not been shown that the decision of the learned trial Judge was perverse, the Court held that as an appellate Court, it will not disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their demeanor.
HELD
All the three issues for determination in this appeal were resolved in favour of the Respondent and against the Appellant. Consequently, the appeal was said to lack merit and it was dismissed.
The Judgment of the lower Court in Suit No – HCG/4/2006 Between – CHIEF JONATHAN EDOJAKWA VS UGHELLI SOUTH LOCAL GOVERNMENT COUNCIL, delivered on 16th day of March 2010, was affirmed and costs which was fixed at (N150,000.00) One Hundred and Fifty Thousand Naira, was granted against the Appellant.
COPYRIGHT: (2018) LPELR-43927(CA)
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