3PLR – KABIRU MUSA RANGAZA V. MICRO PLASTIC COMPANY LIMITED
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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KABIRU MUSA RANGAZA
V.
MICRO PLASTIC COMPANY LIMITED
IN THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, THE 6TH DAY OF MARCH, 2013
CA/K/138/2011
3PLR/2013/96
OTHER CITATIONS
(2013) LPELR-20303(CA)
BEFORE THEIR LORDSHIPS
ABDU ABOKI, JCA
ITA GEORGE MBABA, JCA
HABEEB ADEWALE OLUMUYIWA ABIRU, JCA
BETWEEN
KABIRU MUSA RANGAZA – Appellant(s)
AND
MICRO PLASTIC CO. LTD – Respondent(s)
REPRESENTATION
- U. Mustapha – For Appellant
AND
- G. Waru – For Respondent
ORIGINATING STATE
Kano State: High Court (I. M. Karaye J- Presiding)
MAIN ISSUES
DEBTOR AND CREDITOR LAW:– Recovery of sum outstanding on transactions pursuant to a contractual agency relationship – Where admission is indebtedness but quantum of debt contested – Action via undefended list – How treated
DEBTOR AND CREDITOR LAW:– Satisfaction of indebtedness – A party who has admitted indebtedness to the other – Whether has duty to amply demonstrate to the trial court how the indebtedness admitted was liquidated – Whether the burden of proof in all cases of indebtedness is on the defendant who admitted being indebted to the plaintiff
COMMERCIAL LAW – AGENCY – PRINCIPAL-AGENT RELATIONSHIP:- Relationship of principal and agent – Three ways same is created – Agency by agreement, whether contractual or not, between the principal and agent which may be express or implied from the conduct or situation of the parties – By ratification by principal, retrospectively of acts done on his behalf; By operation of law under the doctrine of agency of necessity and in certain other cases – Where the existence of an agency relationship is under dispute – Onus – Whether lies on party who asserts its existence – Relevant considerations
PRACTICE AND PROCEDURE – EVIDENCE – AFFIDAVIT EVIDENCE: Conflict in affidavit evidence – How resolved – Whether it is not only by calling oral evidence – Whether such a conflict can be resolved by authentic documentary evidence which supports one of the affidavits in conflict with another – Whether a court an suo motu resolve conflicting affidavit evidence by resort to the documentary evidence
PRACTICE AND PROCEDURE – EVIDENCE – BURDEN OF PROOF:- EVIDENCE – BURDEN OF PROOF:- Rule that he who asserts a fact, and which fact is not admitted by the other party, has the onus of proving that fact – Indebtedness – Where defendant admits indebtedness to plaintiff – Whether it is the defendant that has the burden of proving how debt was liquidated
PRACTICE AND PROCEDURE – EVIDENCE – DOCUMENTARY/ORAL EVIDENCE: Rule that documentary evidence is the best form of evidence in proof of a case – Rule that oral evidence is inadmissible to vary or contradict the contents of a document – Whether documentary is used to test the veracity of oral evidence and not the other way round – Where oral evidence supported by documentary evidence acquires greater credibility
PRACTICE AND PROCEDURE – COURT – DUTY OF COURT:- “Duty of Court to give effect to the agreement between the parties and not re-write same – Whether applies even if the contract is inelegantly or ineptly couched
PRACTICE AND PROCEDURE – ACTION – UNDEFENDED LIST PROCEDURE:- Purpose of – For an affidavit to constitute a defence on the merit – Need for the defendant to set out the defence in the affidavit and not simply say that he has a defence – Nature of the defence which will qualify as a defence on the merit – Need for it to a defence which would be an answer to the Plaintiff’s claim and such as exhibit enough facts and particulars to satisfy a reasonable tribunal to remove the suit from the Undefended List to the General cause List – An affidavit which fails to convey reasonable and sufficient particulars – Whether would not be described as one constituting a defence on the merit
PRACTICE AND PROCEDURE – ACTION – UNDEFENDED LIST PROCEDURE:– Procedure for bringing a suit under the undefended list by the provisions of Order 23 Rule 3 (1) of the High Court of Kano State (Civil Procedure) Rules – Whether it is not the aim of the Undefended List Procedure to shut out a Defendant who wants to contest a suit brought under the Undefended List merely in order to obtain a speedy trial at the expense of justice – How a Defendant willing to defend a suit placed under the Undefended List can convince the Court to grant him leave to defend
PRACTICE AND PROCEDURE – ACTION – UNDEFENDED LIST PROCEDURE:- Rule that where a matter is placed under the Undefended List, a Defendant who has no real defence to the action should not be allowed to disturb and frustrate the Plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time with which to continue to postpone meeting his obligation and indebtedness – Effect
MAIN JUDGMENT
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of Kano State High Court of Justice delivered on 27th day of May, 2010 by I. M. Karaye J. The brief summary of the facts that gave rise to this appeal are that sequel to the agency relationship between the Appellant and the Respondent, the Respondent supplied the Appellant with trucks of cement which the Appellant sold to government contractors on credit basis.
At a certain point in time the agency relationship that hitherto existed between the Appellant and the Respondent was terminated by the Appellant.
As at the time of the termination of the said agency relationship, the Respondent claimed that the Appellant was indebted to it to the tune of N12,986,500.00 (Twelve million, nine Hundred and Eighty-Six Thousand, Five Hundred Naira Only).
The Appellant on the other hand admitted that his outstanding indebtedness to the Respondent was N10,500,000.00 (Ten Million Five Hundred Thousand Naira Only).
At the conclusion of the trial, the lower Court upheld the Respondent’s claim in its entirety.
Aggrieved by the said decision of the lower Court, the Appellant appealed to this Court through a Notice of Appeal dated 28/5/2010. The said Notice of appeal contained 11 Grounds of Appeal.
Briefs of argument were in accordance with the relevant rules of this Court duly filed and exchanged and at the hearing of this appeal the parties duly adopted the arguments and submissions contained in their respective briefs and reply.
The Appellant’s brief dated 2/6/2012 and filed on 5/6/2012 was settled by M. E Sheriff while the Respondent’s brief dated 17/9/2012 and filed on 18/9/2012 was settled by I. G. Waru.
The Appellant’s reply brief dated 5/12/2012 and filed on 12/2/2012 was settled by M.E. Sheriff.
The Appellant in his brief of argument formulated 2 issues for determination to wit;
“1. Whether the decision of the trial High Court was not wrong by holding that an agent of disclosed principal can incur personal liability in an agency relationship.
- Whether the decision of the trial High Court was not perverse when it held that filing a Notice of Intention to Defend was not enough to transfer a matter to a general cause list.
The Respondent on the other hand formulated a sole issue for determination to wit;
“Whether the Appellant has shown and/or established any defence on the merit to justify granting him leave to defend and/or cause the transfer of the suit No.K/91/2010 from an Undefended List to the General Cause List.”
The lone issue distilled by the Respondent is capable of resolving all the issues presented by the parties. I adopt same for the determination of this appeal. It reads as follows:-
“Whether the Appellant has shown and/or established any defence on the merit to justify granting him leave to defend and/or cause the transfer of the suit No. K/91/2010 from an Undefended List to the General Cause List. ”
On the said issue Counsel to the Appellant submitted that the lower Court erred in law when it gave judgment in favour of the Respondent. Counsel maintained that the lower Court failed to take cognizance of the agency relationship that had existed between the Appellant and Respondent as well as the mode of doing business between them wherein the Respondent supplied the Appellant with cement who in return sold the said cement to government contractors on credit basis and immediately payment was made by the said contractors, the Appellant remits the said money into the Respondent’s Guaranty Trust Bank Account.
Learned Counsel referred the Court to paragraphs 6, 8, 9, 10, 11 of the Respondent’s affidavit in support of the Writ, Paragraph 4 (b), (c) and (e) of the Appellant’s Notice of Intention to Defend, and the cases of Selwyn L.J. LR 4 CH App 546, Hutchinson Vs. Bray Bread Ltd. (1968) QB 549, Anglo Overseas Transcorp. Ltd Vs. Titan Industrial Corporation (1959).
Learned Counsel contended that the decision of the lower Court was tantamount to making the Appellant who was an agent of the Respondent to be personally liable for the goods supplied to a customer on credit. Learned Counsel maintained that the decision of the lower Court was faulty as the Appellant had not done anything to show that he will be personally liable for the goods supplied to a particular customer who defaults in making payment. In support of his submission, learned Counsel referred the Court to the cases of;
Pilgrims Board Vs. Bashorun (1967) NCLR 142 at 145,
Oyenuga Vs. I.C.L (1991) 1 NWLR (Pt.168) 415 at 427.
He submitted that the lower Court erred in law when it failed to grant the Appellant leave to defend the action under the Undefended List Procedure.
The Court was referred to Order 23 Rule (2-5) of the Kano State High Court Civil Procedure Rules 1988 and the cases of FMG vs. Sanni (1990) 3 N.S.C.C 165 at 177, Saw vs. Makin (1989), T. Jacobs vs. Booths Distillery Com (1901-2) vol. 85 NSTLR 262 at 124, Euro-Bati Concept vs. S.A.V.T.I.C Ltd. (2001) 8 NWLR (PT.744) 165 at 175-177, Johnholt & Co (Liverpool) Ltd vs. Fajemirokim (1961) NLR 49 and Olubusola Stores Vs. Standard Bank of Nigeria Ltd (1975) 4 S.C 51.
In conclusion, learned Counsel to the Appellant urged the Court to set aside the decision of the lower Court for being perverse.
Learned Counsel to the Respondent on the other hand argued that the lower Court was not in error when it failed to grant the Appellant leave to defend the action. Counsel maintained that since the Appellant had admitted the Respondent’s claim, the lower Court was not under any obligation to transfer the said claim to the General Cause List. He referred the Court to Exhibit A, page 74 of the record and the cases of Nwojini vs. Adu (2000) FWLR (PT.20) page 582 at 599, Aliyu vs. Itauma (2010) Alt FWLR (PT.510) 769 at 783, Oseni Vs. Bajulu (2010) ALL FWLR (PT 511) 813.
Learned Counsel maintained that the Appellant was not an agent of the Respondent and the submission of the learned Counsel to the Appellant was geared towards creating an artificial defence in favour of the Appellant which will ultimately exonerate the Appellant from claim.
Learned Counsel cited to the Court the case of H.U.D vs. Ifeanyi Chukwu Ventures Nig. Ltd. (2005) ALL FWLR (PT.257) 1573 at 1581-1582.
He maintained that the Appellant had not disclosed any defence that would warrant the lower Court to grant him leave to defend the action.
Learned Counsel also referred the Court to the cases of Chairman Moro Local Government vs. Lawal (2008) ALL FWLR (PT 440) 684 at 762, Okoli vs. More Cab Ltd. 30 NSCQR (PT.1) 453 AT 479 and Abaje vs. Alade (2011) ALL FWLR (PT 5) 593 1969 at 1989.
He urged the Court to dismiss this appeal and affirm the decision of the lower Court.
In a further reaction, learned Counsel to the Appellant in his reply brief contended that the lower Court ought to have transferred the Respondent’s claim to the General Cause List since the Appellant’s affidavit in support of this Notice of Intention to Defend had disclosed a defence on the merit.
He also challenged the correctness of the content of Exhibit A1.
Learned Counsel referred the Court to Exhibit A, A1, Section 128(1), (b), (c), (c), r28 (3) and the case of the Evidence Act of Benjamin vs Bernet (1903) 19 TLR 564.
In conclusion, learned Counsel to the Appellant urged the Court to allow this appeal.
In Mat Holdings Ltd vs. UBA (2003) 11 FR 66 the Court held that;
“It is trite that a party who has admitted indebtedness to the other has duty to amply demonstrate to the trial court how the indebtedness admitted was liquidated.”
Also in Akolonu vs. Omokaro 10 FR 12, the Court held that;
“The burden of proof in all cases of indebtedness is on the defendant who admitted being indebted to the plaintiff. It is his duty to show that such obligation has been discharged. ”
In the instant appeal, the crux of the Respondent’s claim was that it was a Dangote Cement distributor and in its bid to emancipate the Appellant’s business from the difficulties bedeviling it, agreed to be supplying cement to the Appellant at the cheaper price.
Thus on the 23rd day of April, 2009, the Respondent supplied the Appellant with cement worth N13, 810,000 (Thirteen Million Eight Hundred and Ten Thousand naira Only) on the basis of an understanding that the moment the cement was sold, the Appellant would pay for the price of the cement, supplied into the Respondent’s current account with Guaranty Trust Bank Plc.
When the said cement were delivered to the Appellant, 549 bags were discovered to have been damaged. The cost of the said damaged cement was N823, 500 (Eight Hundred and Twenty Three Thousand, Five Hundred Naira Only). Consequently, the Respondent told the Appellant not to pay for the cost of the damaged bags of the cement. Hence the outstanding balance of the bags cement that were supplied by the Respondent to the Appellant stood at N12,986,500 (Twelve Million, Nine Hundred and Eighty Six Thousand, and Five Hundred Naira Only).
In Exhibit A1 which is a translation of Exhibit A, the Appellant admitted being indebted to the time of N12,986,500 as claimed by the Respondent.
The Appellant on the other hand in a reaction to the Respondent’s claim insisted that he was appointed by the Respondent as its sale agent.
The Appellant further stated that the Respondent supplied him with cement on credit basis which he paid to the Respondent the moment he was paid by their customer.
The Appellant acknowledged that the outstanding balance of N12, 986,500 which the Respondent is claiming from him is lying in the hands of the Appellant’s customers more specifically Alhaji Baba Dantata and Alhaji Aminu Ibrahim. The Appellant having admitted being indebted to the Respondent to the tune of N12, 986,500.00 the burden of establishing how the said indebtedness was liquidated, exclusively and squarely rests upon the Appellant.
In his bid to establish a defence on the merit, the Appellant claimed in his affidavit in support of his Notice of Intention to Defend that he was a sale agent of the Respondent, who supplied him with cement on credit basis and that as an agent of the Respondent, he cannot be made to personally pay for the cost of the cement he had purportedly supplied to his customers worth N12, 986,500.00 which they have neglected or refused to pay.
I have patiently examined all the depositions made by the Appellant in his affidavit in support of his Notice of Intention to Defend and I have observed that the Appellant had not deposed to facts containing detailed particulars of his appointment as a sale agent by the Respondent. The Appellant in the said affidavit had woefully failed to state when, where, how he was appointed as a sale agent of the Respondent.
The Respondent on the other hand presented Exhibits A and A1, in which the Appellant unambiguously and categorically admitted indebtedness to it to the tune of N12, 986,500.
It is also worth mentioning that the Appellant had not disputed the authencity of Exhibit A, but rather the Appellant only challenged the content of the translation of Exhibit A1 but has not in his affidavit annexed the correct translation of Exhibit A.
In Maryam vs. Idris (2000) FWLR (PT.23) 1237, the Court held that;
“It is the duty of Court to give effect to the agreement between the parties and not re-write same, even if the contract is inelegantly or ineptly couched”.
In the instant appeal, the Appellant having expressly admitted indebtedness as evidenced in Exhibits A and A1, the Court has no other option than to respect the bindingness and sanctity of the content of Exhibits A and A1 respectively.
Furthermore the presence of Exhibits A and A1 has jettisoned the need to call oral evidence by the lower Court to resolve the contradictions contained in the respective affidavits that were filed by the parties in this appeal.
On this point the Supreme Court in Eimskip Ltd. Vs. Exquisite Ind. Ltd. (2003) 4 NWLR (PT.809) had this to say;
“But it is not only by calling oral evidence that such a conflict in affidavit evidence can be resolved. Such a conflict can be resolved by authentic documentary evidence which supports one of the affidavits in conflict with another. Where the Court has enough documentary evidence at its disposal, it can suo motu resolve conflicting affidavit evidence by resort to the documentary evidence”.
In conclusion this appeal lacks merit and is hereby dismissed. The decision of the Kano State High Court delivered on the 7th day of May 2010 is hereby affirmed. There will be no order as to costs.
ITA GEORGE MBABA, J.C.A.:
I had the privilege of reading the lead judgment by my learned brother, ABDU ABOKI, JCA, and I agree with his reasoning and conclusions therein. Accordingly, I hereby dismiss the appeal and abide by the consequential Orders in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.:
I have had the privilege of reading the lead judgment delivered by my learned brother, Aboki, JCA. I agree with the reasoning and conclusions therein. I wish to make some additional comments.
The Respondent commenced this action against the Appellant before the Kano State High Court under the Undefended List Procedure as Suit No K/91/2010. The claims of the Respondent were for the sum of N12, 986,500.00 being the total indebtedness due from the Appellant together with interest at the rate of 10% until the whole sum is liquidated and the costs of the action. The indebtedness was said to have arisen from the supply of cement made to the Appellant by the Respondent and for which the Appellant refused to pay. The Respondent attached a document written in Hausa Language with its English translation wherein the Appellant admitted that he was indebted to the Respondent in the said sum of N12, 986,500.00. In the judgment delivered by the learned trial Judge, Honorable Justice Ibrahim Musa Karaye, on the 27th of May, 2010, the lower Court found that the Appellant did not make out a defence on the merits and it entered judgment for the Respondent in the terms of its claims.
It is pertinent to state that the provisions on Undefended List in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the Defendant has absolutely no defence to the Plaintiff’s case. It must, however, be understood that it is not the aim of the Undefended List Procedure to shut out a Defendant who wants to contest a suit brought under the Undefended List merely in order to obtain a speedy trial at the expense of justice. Thus, Order 23 Rule 3 (1) of the High Court of Kano State (Civil Procedure) Rules gives a Defendant willing to defend a suit placed under the Undefended List a leeway and it obligates such a Defendant to file a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, and it states that once a Defendant does this, the Court will grant him leave to defend – Bona V Textile Ltd Vs Asaba Textile Mills Plc (2013) 2 NWLR (pt.1338) 357, Theobros Auto-Link Nig Ltd Vs Bakely International Auto Engineering Co Ltd (2013) 2 NWLR (Pt.1338) 337.
Now, for an affidavit to constitute a defence on the merit, the defendant must set out the defence in the affidavit and not simply say that he has a defence. The affidavit must show reasonable grounds of defence; that there is some dispute between the parties requiring to be gone into – Osifo Vs Okogbo Community Bank Ltd (2006) 15 NWLR (Pt.1002) 260. In Pan Atlantic Shipping & Transport Agencies Ltd Vs Rhein Mass GMBH (1997) 3 NWLR (Pt.493) 248, the Supreme Court clearly identified the nature of the defence which will qualify as a defence on the merit. It is a defence which would be an answer to the Plaintiff’s claim and such as exhibit enough facts and particulars to satisfy a reasonable tribunal to remove the suit from the Undefended List to the General cause List. An affidavit which fails to convey reasonable and sufficient particulars would not be described as one constituting a defence on the merit.
The Appellant filed a notice of intention to defend in the instant case and it was supported by an affidavit. In the said affidavit, the Appellant admitted that there was indeed an outstanding sum of N12, 986,500.00 due to the Respondent from the supply of cement to him. His defence was that the relationship between him and the Respondent was that he was a sales agent of the Respondent and that he had never purchased cement from the Respondent for any sum whatsoever. It was his case that he sold cement on credit sales basis on behalf of the Respondent and that when the credit customers pay for the cement, he remits the funds into the account of the Respondent. It was his case that the outstanding sum of N12, 986,500.00 was in the hands of some of the credit customers to whom cement was supplied but who were yet to pay for same. It was his case that he was not personally indebted to the Respondent in the sum.
It is trite that he who asserts a fact, and which fact is not admitted by the other party, has the onus of proving that fact – Central Bank of Nigeria Vs Auto Import Export (2013) 2 NWLR (Pt.1337) 80, Attorney General, River State Vs Attorney General, Bayelsa State (2013) 3 NWLR (Pt.1340) 123. The Respondent did not admit the existence of an agency relationship between it and the Appellant the onus was thus on the Appellant to depose to credible facts in his affidavit in support of the Notice of Intention to Defend on the existence of such relationship. The law of agency is clear and unambiguous. It is settled law that the relationship of principal and agent may arise in three ways (a) by agreement, whether contractual or not, between the principal and agent which may be express or implied from the conduct or situation of the parties; (b) retrospectively, by subsequent ratification by the principal of acts done on his behalf; (c) by operation of law under the doctrine of agency of necessity and in certain other cases – Niger Progress Ltd vs NEL Corporation (1989) 3 NWLR Pt.107) 68, The Procter & Gamble Co. vs Global Soap and Detergents Ltd (2013) 1 NWLR (Pt.1336) 409. In Bamgboye Vs University of Ilorin (1991) 8 NWLR (Pt.207) 1 at page 29 G – H the Court stated:
“The relationship of agency arises whenever one Person called the agent has authority to act on behalf of another called the principal and consents to act. Authority may also be implied from the subsequent assent of the principal. It is therefore trite law that agency arises mainly from a contract or agreement between parties, express or implied.”
From the affidavit in support of the Notice of Intention to Defend, the Appellant appeared to have relied on implied conduct of the parties as the basis of his claim of the existence of an agency relationship between the parties. This assertion however suffers a credibility crisis by reason of the contents of the document attached to the affidavit in support of the claims of the Respondent The Appellant admitted in the said document that the outstanding balance due to the Respondent from him, as a person and not from any credit customers, was exactly the sum of N12,986,500.00.
The Appellant did not contest or challenge the authenticity of the said document in any part of the affidavit in support of the Notice of Intention to Defend. All that the Appellant said as regards the document was that the English translation was not a true translation as it did not define the contents of the Hausa version of the document. The Appellant did not however state or attach what he considered the correct English translation of the document.
It is settled law that documentary evidence is the best form of evidence in proof of a case – Attorney General, River State v. Attorney General, Bayelsa State supra. And oral evidence is inadmissible to vary or contradict the contents of a document – Bongo Vs Governor of Adamawa State (2013) 2 NWLR (Pt.1339) 403. Documentary evidence is the hangar upon which the Court tests the veracity of oral evidence and where oral evidence is supported by documentary evidence, it is deemed more credible. The documentary evidence in support of the claims of the Respondent belied the case of the Appellant in the affidavit in support of the Notice of Intention to Defend.
I am in total agreement with the learned trial Judge that the affidavit of the Appellant in support of its Notice of Intention to Defend did not disclose any triable issue or a defence on the merits to warrant the claims of the Respondent being transferred to the General Cause List. It is trite that where a matter is placed under the Undefended List, a Defendant who has no real defence to the action should not be allowed to disturb and frustrate the Plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time with which to continue to postpone meeting his obligation and indebtedness – Kenfrank (Nig) Ltd. v. Union Bank of Nigeria Plc (2002) 15 NWLR (Pt.789) 46, Sanyaolu vs. Adekunle (2006) 7 NWLR (Pt.980) 551, Theobros Auto-Link Nig Ltd v. Bakely International Auto Engineering Co. Ltd. supra.
It is for these reasons, and the more detailed reasons contained in the lead judgment, that I also find no merit in this appeal. I too dismiss the appeal and affirm the judgment of the lower Court. I abide by the consequential orders on cost in the lead judgment.
