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IN THE COURT OF APPEAL
KADUNA JUDICIAL DIVISION
4TH JULY 2000
FWLR (Pt.19) 433
ISA AYO SALAMI, JCA
MAHMUD MOHAMMED, JCA
VICTOR AIMEPOMO, JCA
OYELEYE OMAGE, JCA
ABDU USMAN MAIDARA
A.Y. Ladan, – For the Appellant
No Appearance – For Respondent
COMMERCIAL LAW – CONTRACT:–Islamic Law of Contract, sharikat al – madharaba and muravalat – How proved
RELIGION AND LAW:-
PRACTICE AND PROCEDURE – EVIDENCE – Burden of proof in civil matters – on whom it lies and when discharged.
EVIDENCE – Evaluation of evidence – unchallenged and uncontroverted evidence – how treated.
ISA AYO SALAMI, JCA, (delivering the leading judgment)
The plaintiff’s claim against the defendant is for the sum of N149,500.00, being the balance of money collected from him for the purchase and supply of fertilizer, which the defendant refused or neglected to pay, inspite of several demands and an agreement, in which the defendant gave an undertaking to refund the same by 31st December, 1999.The writ of summons was caused to be issued, under undefended list, pursuance of Order 22 rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 1987. The defendant filed notice of his intention to defend supported by affidavit disclosing defence on the merit. The suit was eventually transferred from the undefended to the general cause list.
Pleadings were consequently ordered, filed and exchanged accordingly at statement of claim and amended statement of defence. The plaintiff’s claim adumberated in paragraph 33 of his statement of claim reads inter alia as follows:-
“In consequence of the matters aforesaid, the plaintiff has suffered loss and damage whereof he claims against the defendant as follows-
TOTAL N144, 500.00plus 21% interest on N64,500.00.”
The defendant filed a sixteen paragraphs statement of defence containing a fourteen paragraph particulars of counter claim. It was averred in paragraph 16 of the statement of defence thus:-
“That in further reply to paragraph 29 – 33 the defendant avers as follows:-
(i) That the plaintiff pleaded with the defendant to borrow him some money and the defendant borrowed him N57,000.00 in the presence of one Ahmadu and later N65,000.00 and subsequently N5000.00 all totaling N142,000.00 which the plaintiff collected and has refused to repay same to the defendant inspite of repeated demands but the defendant did not give the said money to the plaintiff in payment of any purported debt.
(iv) …………AND the Defendant hereby counter claims against the plaintiff as follows:-
N235,500.00 Special and General damages.”
The plaintiff testified and called three other witnesses in support of his claim. The defendant also gave evidence, in addition to two other witnesses, he called in support of his defence and counter-claim. Learned counsel for other party addressed the court viva voce. Thereafter, learned trial judge, in a reserved and well considered judgment, concluded as follows:-
“I have come to the irresistible conclusion that the claim of the plaintiff succeeds in part and is granted while the counter-claim of the defendant has failed and is dismissed. Judgment is hereby entered in favour of the plaintiff as against the defendant in the sum of N64,500.00 being balance of his N203,000 advanced to him in the course of this transaction. Plaintiff is also awarded N10,000 as general damages. The claim of 21% interest is refused. As for the defendant his counter-claim fails and is dismissed.”
The defendant is dissatisfied with the decision and has appealed to this Court on 9 original and I additional grounds of appeal. The notice of appeal dated 27/6/97 appears to carry 10 original grounds the truth is that there are only 9 grounds of appeal. The false impression emanates from ground 3 being numbered as ground 4. In accordance with practice and procedure of this Court, briefs of argument were settled and exchanged respectively at amended appellant’s and respondent’s brief.
Issues were formulated in each of the brief of argument. In the appellant’s brief these issues were identified as calling for determination:- “1. Whether the Islamic Law principles of Sharikat Al Mudharaba means a contract where respondent supplies capital for a business transaction which business is to be performed by appellant so that the 2 parties share the profit accruing thereby.
The respondent, who was the plaintiff in the trial court, framed the following issues:-
“1. Whether the trial judge was right in holding that Islamic Law principle of Sharikat al-Mudharaba does not apply to the transaction between the respondent and the appellant and that the transaction between parties was a simple contract of offer and acceptance.
“The learned trial judge erred in law when he held at page 98 of the record that: “As submitted by A.L. Yusuf Esqr that this is a proper case where the provisions of Order 20 rule 3(2) should be applied to award same, I do not share that view at all as it is the duty of the plaintiff herein the counter-claimant to establish by credible evidence that he has a claim against the (plaintiff/defendant) here. The defendant has woefully failed to prove such counter claim and same is dismissed for lack of merit.” Thereby occasioning a miscarriage of justice.
PARTICULARS OF ERROR
(a) The plaintiff (Defendant to the counter claim) did not file a statement to the counter claim nor led evidence to rebut same.
(b) The evidence of the Defendant/Counter-claimant in proof of his counter claim was not controverted.
(c) Any pleading and or evidence that is not challenged or denied is to be deemed proved and established by court.”
The appellant related the additional ground of appeal to issue 6. Clearly the ground or the issue that could be identified from it should deal with exercise of discretion of the learned trial judge. The learned trial judge, in the circumstance of this case, had discretion either to enter judgment in favour of the counter-claimant, at defendant’s instance, in default of pleadings or in the alternative to call upon him to prove his case with minimal of evidence. The appellant was required by Order 26 rule 2 to move the court to give him judgment for the amount claimed. See provisions of Order 26 rules 2 and 9 of High Court (Civil Procedure) Rules Cap 68 of the Laws of Kaduna State of Nigeria, 1991. Order 26 rule 2 provides for the appellant, as the counter-claimant, to move the court to enter judgment in respect of the counter-claim in event of default of pleadings. He failed to move the court accordingly. Consequently the matter went into hearing with appellant’s full participation and without breathing a word against the measure taken. It is rather too late in the day to cry. Order 26 rules 9 merely equates consequence of default of defence to a counter claim to what prevails in event of default of defence to a statement of claim under rule 2 thereof.
By appellant’s failure to move the trial court to enter judgment in his favour, in default of defence to counter-claim, pursuance of Order 26 rules 2 and 9 of the High Court (Civil Procedure) Rules, Cap 68, he is deemed to have waived or slept on his right. What then is a waiver? It has been held in Kudu v. Aliyu (1992) 3 NWLR (Pt. 213) 615 at 635 that where a person having full knowledge of his rights, interests, profits or benefits conferred or accruing to him under the law but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights. He should be held to have waived those rights. Therefore a person will generally not be allowed to complain of an irregularity he has himself accepted and condoned. See also generally Adene v. Dantunbu (1994) 2 SCNJ 130; (1994) 2 NWLR (Pt. 328) 509, 528. The appellant, having failed to exercise the right conferred on him by reading rules 2 and 9 of Order 26 of the High Court (Civil Procedure) Rules, Cap 68, together at the trial court, is estopped from raising the matter here on appeal.
The learned trial judge had an option, when the plaintiff failed to serve a defence to the counter-claim, either to enter judgment for the defendant in respect of his counter claim or to invite him to produce evidence. In the present appeal, learned trial judge impliedly exercised his discretion in favour of the appellant calling evidence in proof of his counter claim. He also found in the passage quoted above that the appellant failed to establish his counter claim on balance of probability by credible evidence.
This ground alone is capable of evolving two distinct issues, one of exercise of discretion by learned trial judge and the other in respect of discharge of onus of proof. Either of the putative issues demands different considerations. The consideration for wrongful exercise of discretion is different from one for review and evaluation of evidence and ascription of probative value to witnesses. It is not always that a party produces unchallenged and uncontroverted evidence that judgment is entered in his favour. The unchallenged and uncontroverted evidence might be worthless or might fall far short of tilting the imaginary scale in favour of a party tendering unchallenged and uncontroverted evidence. Unchallenged and uncontroverted evidence is not synonymous with prove by credible evidence.
Not only did the appellant, under this issue, canvassed wrongful exercise of discretion by opting to take evidence instead of entering judgment in his favour he also canvassed ascription of probative value to the witnesses as well as quantum of damages. Under this same issue, learned counsel tacked argument in respect of his claim for interest. The learned counsel for appellant under his issue 6 argued four different questions, some covered by the grounds while others were not covered. One thing after the other otherwise there will be a muddle. The additional ground of appeal raised issues which are incompatible, the two issues arising therefrom should in their own rights be placed or constituted into separate grounds of appeal and if they were they could not possibly have been argued together. To further compound the problem, issues that could not arise, in ones wildest imagination from the ground, were argued thereunder. The ground of appeal ought to be struck out and it is hereby struck out. I did this because the two sets of particulars questioning the judgment on different basis are incompatible. A set of the particulars ought to be struck out but I do not know which of them counsel proposes to give up. Even if he could be put to his election, and were permitted to elect and one or two particulars, consequent upon his election, were struck out on the Authority of Honica Sawmill Nigeria Ltd. v. Mary Okojie Hoff (1994) 2 NWLR (Pt. 326) 252, 262 the remaining particulars are rendered otiose. They become irrelevant on account of the inability of the court to carry out a surgical operation on the ground by excising argument in respect of bad part from the appellants argument in respect of that issue: Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Bereyin v. Gbogbo (1989) 1 NWLR (Pt. 97) 372, 380; Ayologu v. Agu (1998) 1 NWLR (Pt. 532) 129, 143. It is not for the court to separate the chaff from the grains in the argument advanced in support of issue in the appellant’s brief of argument consequently the argument arising from issue 6 are hereby struck out simply because additional ground of appeal or ground 10 from which it is framed is incompetent.
Issues 1 and 2 are related to ground 2 and are argued together in the appellant’s brief of argument. Since appellant counsel decided to argue these issues together I do not propose to discuss it further than to observe that only an issue should ideally be framed from one ground of appeal. A number of grounds of appeal may give rise to a single issue such grounds are argued together under that issue. If such issue is resolved against the appellant, the grounds from which it was formulated fail and are dismissed otherwise the grounds succeed and are allowed. Where a ground of appeal is divided into several issues and the argument in support of it under one issue is resolved against the appellant and it is dismissed it is no longer proper to further discuss the same ground of appeal which had been dismissed under another issue. It is undesirable to split a ground of appeal into more than one issue.
Proliferation of issue in a brief is not ideal. It results in confusion and muddle. The court may thereby loose sight of the real issue. See Alhaji Sule Agbetoba & others v. The Lagos State Executive Council & Others (1991) 6 SCNJ, 1, 12, (1991) 4 NWLR (Pt. 188) 664 where the Supreme Court said:-
“The ideal is to formulate an issue as encompassing more than one ground of appeal. It is not only undersirable but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues.”
See also Agu v. Ikwadibe (1991) 3 NWLR (Pt. 180) 385, Chevron Nigeria Ltd. v. Onwgbechi & others (1996) 3 NWLR (Pt. 437) 404, Labiyi v. Anretiola (1992) 8 NWLR (Pt. 238) 157, Aniekwe & others v. Okereke (1996) 6 NWLR (Pt. 452) 60 and Adisa v. The State (1991) 1 NWLR (Pt. 168) 490. Appellant’s issue 3 could conveniently be taken along with the first two as respondent did.
Learned counsel for appellant contended that it was on record that the parties were to share the profit from the supply of fertilizer to the Nigeria Tobacco Company from the money supplied by the respondent. He argued that since respondent who testified as first plaintiff witness was a Muslim as well as the appellant who testified as first defence witness the transaction entered into by them was presumed to be governed by Islamic Law. It needed not to be stated either orally or in writing, as that law is their way of life, it binds them. Learned counsel referred to the testimony of both the respondent and the appellant on the nature of the transaction as well as evidence of second and third defence witnesses who testified as experts on Islamic Law, the lower court ought to have held that the transaction between the parties was Sharikat Al-Mudharaba. He submitted that the trial court erred when it failed to hold that the transaction between two Muslims was governed by al-mudharaba.
It was further submitted that the evidence of second and third defence witnesses should have been taken as establishing that the transaction between the parties “was akin” to the principles of Al-Mudharaba laid down: Modupe v. The State (1988) All NLR 371, 375.
In this connection, learned counsel for respondent contended that neither the respondent nor the appellant raised the issue of Sharikat al-Mudharaba in their original pleadings. Learned counsel then submitted that the importation of Sharikat al-mudharaba after the respondent had closed his case was an after thought.
Learned counsel further submitted that it was not sufficient to show that parties are Moslem and argued that for Islamic law to apply parties must be shown to have agreed to be bound by it. Learned counsel draw a distinction between Islamic Personal Law and Islamic Law of Contract.
The introduction of the principle of Islamic Law of Sharikat al-mudharaba into the defence of the appellant was during the cross-examination of the first plaintiff witness, who is incidentally the respondent in the instant appeal. The applicability of this principle of Islamic Law was not raised in the appellant’s original statement of defence. The aspect of Sharikat al-mudharaba was formally brought into the case when the respondent and his witnesses had testified and respondent’s case closed. The introduction of the defence, at that stage, is not only an after thought but intended to over-reach the respondent. It clearly answers the adage which says that a drowning man would cling unto anything including a snake.
I agree with the submissions of the learned counsel for respondent that there is a distinction between application of a personal law and other aspect of sharia. Islamic personal law such as marriage, succession and inheritance applies to all Muslim simply because they are Moslem. But Islamic Law of Contract including Sharikat al-mudharaba and muravalat is not applicable to a contract merely because the parties are Muslims. The appellant, in the circumstance, had a burden of proof that there was cooperation or partnership agreement between the parties to pull their resources together. There must be evidence that respondent agreed to supply the capital and the appellant agreed to contribute his expertise as well as sharing of the profit (if any) before the principles of Sharikat al- mudharaba could be invoked. The respondent when cross-examined whether the parties agreed to be bound by this principle of Islamic Law denied it. The witnesses appellant summoned to testify on this aspect of the case, second and third defence witnesses, were not in a position to give credible evidence on the matter. The reasons for their shortcoming was not in them but in the appellant who called them as witnesses. The two witnesses were complete strangers to the transaction. The negotiation of the contract was not done in their presence. They can therefore have no personal knowledge thereof not to talk of their adducing evidence in that regard. The two witnesses do not know the terms of the contract and cannot testify on it.
The appellant having raised the defence of Sharikat al-mudharaba the onus of proof was on him. He is the party who asserts or who will fail if no evidence is adduced on the issue; Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; Ogomo v. Ejeh (1987) 4 NWLR (Pt. 64) 216, 239; Bakare v. ACB Ltd. (1986) 3 NWLR (Pt. 36) 47, 57 and S. 137(1) of the Evidence Act Cap 112 of the Laws of the Federation of Nigeria, 1990 which provides as follows:-
“137(1) in civil cases the burden of first proving the existence or non-existence of a fact lies on the party against who the judgment would be given if no evidence were produced on either side regard being had to any presumption that may arise on the pleadings.”
See also Akun v. Mangu L.G.C. (1996) 4 NWLR (Pt. 441) 207, 215. On the applicability of Sharikat al-mudharaba the evidential burden was on the appellant who would lose on the issue. This burden he failed to discharge. It is settled that parties are bound by the condition and terms of their contract and it is not open to one of the parties thereto, in the absence of novation, to unilaterally change or vary the terms of the contract by incorporating into it one or more terms that had not been agreed upon by both parties.
There is no substance in the submission of the learned counsel for the appellant that the question of simple contract was raised suo motu by the learned trial judge without first inviting learned counsel to both parties to address him on it. The learned trial judge, both on the pleadings and evidence, could not justify application of the Islamic Law principle of Sharikat al-mudharaba, belatedly raised by the appellant, to the case in hand. And in rejecting it reasoned that there was sufficient material before him pointing irresistibly to a simply contract of offer and acceptance with its usual attributes of consideration and meeting of both minds otherwise known as consensus ad idem. His answer or reasoning for rejecting appellant’s case under Islamic Law on which issue both parties exhaustively addressed him does not require further address from counsel. The case of Nwoke v. Okeke (1994) 5 SCNJ 102, 118; (1994) 5 NWLR (Pt. 343) 159 cited in the appellant’s brief is, in the circumstance of this appeal, inapplicable.
Finally, it seems to me that the contention of the learned counsel for appellant, both at the trial court and in this court, that Islamic Law of Sharikat al-mudharaba was applicable to this case was an obligue attack on respondents suit on the ground that it did not disclose a reasonable cause of action. But whether a suit discloses a reasonable cause of action is a matter to be determined from the writ of summons and particular of claims filed along with it or statement of claim. It is not a matter to be considered on the statement of defence but the statement of claim or writ of summons discloses cause of action. ” In point of law… every cause of action is a reasonable one” per Chitty, J., in Republic of Peru v. Peruvian Guano Co. 35 Ch. D 495. A reasonable cause of action means no more than a cause of action with some chance of success when only the allegations contained in the pleading are considered: Drummond-Jones v. British Medical Association (1970) 1 WNR 688, (1970) 1 All ER 1094. So far the statement of claim or the particulars disclose some cause of action, or raise some questions fit to be decided by a judge the mere fact that the case is weak and not likely to succeed is no ground for striking it out: Davey v. Bentinck (1893) 1 QB 185; Moore v. Lawson 31 TLR 418; Wenlock v. Moloney (1965) 1 WLR 1238; (1965) 2 All ER 871.
The answer to appellant’s issues 2 and 3 are respectively answered in the negative and positive. Grounds 1, 2 and 4 related to them fail and are dismissed by me. The appellant’s issue 1 is academic and could not have arisen from the ratio decedendi of the trial court.
On appellant’s issue 4, learned counsel for appellant conceded that the burden of proving that there was robbery was on the appellant and contended that the onus was discharged. Learned counsel for appellant then reviewed appellant’s evidence adduced which counsel contended was not contradicted nor demolished. Learned counsel, on the authority of Section 137(1), (2) and (3) of Evidence Act, Cap. 112 contended that the onus then shifted on the respondent to prove to the contrary. The learned counsel argued that it was an error, in the face of the appellants’ uncontradicted evidence and the two exhibits, for the court to hold that appellant woefully failed to establish that he was robbed. He cited the case of Union Bank of Nigeria v. Ozigi (1994) 3 SCNJ 42 at 64, (1994) 3 NWLR (Pt. 333) 385.
The learned counsel for respondent, in the respondent brief, contended that there was onus of proof on the appellant, being the party alleging the robbery, to prove it by credible evidence. Counsel referred to Section 135-138 of the Evidence Act and Akun v. Mangu L.G.C. (supra). Learned counsel submitted that there was no credible evidence led by the appellant and argued that appellant instead engaged in incredibilities.
I agree with the learned counsel for appellant that the burden of proof in civil matter is on preponderance of evidence which onus is never static but shifts from side to side. It is the law that the onus of proof, in a civil case, rest squarely on the plaintiff: Abiodun v. Adehin (1962) 1 All NLR 550; Tewogbade v. Arasi Akande (1968) NMLR 404, 408 where Western State Court of Appeal said:-
“In a civil case, the burden of proof lies on the person who would fail, assuming no evidence had been adduced on either side. Further, in respect of particular facts, the burden rests on the party against whom, judgment would be given if no evidence were produced in respect of those facts.”
See also the cases of Union Bank of Nigeria v. Ozigi (supra); Are v. Adisa (1976) NMLR 304 and Nigeria Maritine Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79, 86.
The question now agitating ones mind is whether the appellant creditably discharged himself. The appellant, as the first defence witness, told the court that he was pushed out of a moving car and was dispossessed of his bag containing N253,700 of which N203,000 belonged to the respondent by other passengers of a taxi cab. He went to court to report the incident where he was given a document. The document allegedly given to him at the High Court turned out to be an affidavit he personally deposed to. The affidavit is exhibit 6 in these proceedings. He later went to report the matter to the police which after two days gave him another hand written document, exhibit 7 herein. I agree with the learned trial judge that when a crime is committed the institution to turn to is the police and not the court. It is the police and not the court that is equipped to combat and investigate crimes. The learned trial judge in his judgment stated thus:-
“Turning to the issue of robbery in Lagos, has the defendant established that he was robbed in Lagos? Is there any evidence outside exhibit 6 to suggest that robbery has been established? The clear answer to my mind is NO. It is not enough to allege without credible evidence in proof of same robbery …….. that the defendant cannot afford to treat it lightly by going to a court of law without more to swear to an affidavit that he has been robbed and to later report to the police. There must be evidence acceptable to the court that the defendant was infact robbed in Lagos and if there was a report made that report must be made available as well as the outcome of the investigation carried out into such a report. This, to my mind, is what is expected in satisfaction with the requirement of the law. Here too the defendant has woefully failed to establish that he was indeed robbed in Lagos. This defence to my mind is an after thought which must be rejected out rightly and I reject same.”
I concur. The appellant who claimed that he was pushed out of a moving taxi-cab in Lagos also claimed that he sustained no injury apparently to forestall being asked to produce evidence of treatment he received from a hospital. He was assisted at the scene by a faceless good Samaritan who guided or escorted him to report commission of offence of armed robbery to the High Court rather than escorting him to the police. There the appellant deposed to affidavit claiming that he was robbed. His ghost friend did not make a corresponding affidavit in support of the averments contained in the appellant’s affidavit. Neither was he called to testify before the trial court nor is there evidence before the trial court that the appellant and his friend made statement to the police in connection with this alleged horrendous crime. Exhibit 7 which he collected from the police does not seem to have taken the appellant’s case any further. It is not a police investigation report as such.
The document admitted as exhibit 7, reads inter alia as follows:-
“The above named person came to the station with sworn affidavit and reported that he took a flight from Kaduna to Lagos on business trip with the sum of two hundred and fifty-three thousand seven hundred naira (N253,700.00). He further stated that on getting to Muritala Mohammed Airport Ikeja, he boarded a taxi-cab to his destination, and he was attacked and pushed out from the vehicle by some gang of armed robbers and went away with the underlisted items:-
N253,700.00 cash, one big box, identity card, two caps, two pairs of shoes and his vehicle particulars and other things. And all efforts made to trace or recover the above items proved abortive hence he reported action. And entry was make in police diary for record purpose.”
Clearly the appellant was merely acting a script, otherwise why should one delay reporting a case of armed robbery committed at 11.30a.m. on 23rd November, 1992 at Airport Road Ikeja to 25th November, 1992. The Olodi Apapa where the commission of the crime was reported was not only several kilometres away it is separated by more than one local governments from the scene of crime. One is, however, not surprised that the police at Trinity Police Station Olodi Apapa accepted the complaint because it was mainly meant for their information or record purpose and not for investigation. One would be strengthened in the view that it was a futile attempt to cover the appellant’s crime of criminal breach of trust when paragraphs 4 and 5 of the affidavit he deposed to are read. The two paragraphs read as follows:-
“4. That consequent to this event, all efforts to recover the above items proved abortive.
(Italics for emphasis)
What “official record purpose” was the affidavit required for? Neither the appellant nor the respondent was an official. The only “official record purpose” the appellant intended the two documents, exhibit 6, affidavit and exhibit 7, report to the police for was the grand design to cover his own crime. Exhibit 7 is purportedly signed by one Deputy Superintendent of Police whose name is not stated against his signature on the rubber stamp impression placed at the bottom of the document. It is not impossible that the rubber stamp was a faked one. Finally the affidavit, exhibit 7, was “Sworn to at THE HIGH COURT REGISTRY APAPA THIS 23RD DAY OF NOVEMBER, 1992”. I am not sure if there is a high court at Apapa. Exhibit 7 itself questioned the authenticity of the document. The query arising from the face of the document is that while it states that it was deposed to at Apapa the rubber stamp impression was that of “High Court Ikeja Lagos State.”
In the circumstance the learned trial judge rightly, in my view held the armed robber case to be a product of appellant’s fertile imagination.
Appellant’s issue 5 is related to grounds 8 and 9 learned counsel, in the appellant’s brief submitted that the court below was not guided by any principle of law when it awarded N40,000 damages to the respondent. It was contended, on behalf of the appellant, that the award was gratuitous as there was no evidence in support of it: Uche Williams v. The State (1992) 10 SCNJ 74, 87. the only item of award appellant is contesting in this issue deals with award of N40,000.00 damages to respondent from suffering some psychological trauma and not the award of N64,000.00 as outstanding from teh sum of N203,000.00. In the circumstance, the only pertinent contention in the respondent’s brief of argument is that it was gross misrepresentation of the law for counsel to the appellant to talk of general damages in terms of strict proof. He contended that the law does not require general damages to be pleaded or proved because they are presumed from the facts of the case U.B.N. Limited v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558. He contended that respondent pleading and proving general damages was merely ex cautella abundanti.
The respondent claimed as follows:-
“General damages – N80,000 for psychological trauma and general discomforts suffered by the plaintiff as a result of the fraudulent acts of the defendant.”
The learned trial judge in his judgment said:-
“There is, however, no strict proof that plaintiff has suffered psychological trauma to the tune of N80,000 to warrant same being granted. In the circumstance of this case, the court has assessed the damaged suffered by the plaintiff as a result of the defendant’s retention of his money all this period taking into consideration the inflationary rate from 1993 to date at N40,000.00.”
I agree with learned counsel for respondent that he was not required to plead general damages not to talk of proving it strictly. It is sufficient if he pleaded it generally. In Lar v. Stirling Astaldi Ltd. (1977) 11 – 12 SC 53, 63 Supreme Court per Fatayi Williams JSC (as he then was) said:-
“To our mind general damages are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and management of a reasonable man.”
And in Omoruwa v. Wahabi (1976) 4 SC 37, 50 Idigbe JSC said:-
“The qualification of general damages in terms of money is, however, a matter for the court (i.e. jury) under proper direction from a judge or by a judge acting as jury where the trial is without a jury and in a majority of cases no precise measure can be indicated although the award necessarily includes compensation for damage incapable of exact proof in terms of money. But as stated by Martin, B., in an old case, general damages are such as the jury may give when the judge cannot point out any measure by which they are assessed except the opinion and judgment of a reasonable man.”
See also Dumez (Nigeria) Ltd. v. Ogboh (1972) 1 All NLR 244, 252 where Lewis JSC, said:-
“It is axiomatic that special damages must be strictly proved unlike general damages, where, if he established in principle his entitlement to them, a trial judge must make his own assessment of the quantum of such general damages and on appeal to this court such general damages will only be altered if they were shown to be either manifestly too high or manifestly too low or awarded on a wrong principle……”
And Supreme Court in Incar Motors v. Benson (1975) 3 SC 117 said:-
“General damages is such a loss which flows naturally from the defendant’s act. It need not to be specifically pleaded, it arises by inference of law, and need not be proved by evidence. It suffices if it is generally averred.”
The appellant’s pleading and adducing evidence in proof of general damages ex cautella abundanti resulted in the holding of the learned trial judge that it had not been pleaded and stricly proved. The finding subsists until it is set aside: Ijale v. Leventis & Co. (1959) SCNLR, Chukwunta v. Chukwu & others 14 WACA 341. The court is prohibited from inquiring into a matter already adjudicated upon. A plea of res judicata ousts the jurisdiction of the court. There is no cross-appeal against this finding of fact as I observed earlier in this judgment that it subsists.
The learned trial judge after he had found that the respondent failed to strictly prove that he suffered psychological trauma to the tune of N80,000.00 nevertheless went ahead to make an award of N40,000.00. The learned trial judge, in the circumstance, in my considered view, appear to be correct. At that stage, the learned trial judge was considering quantum of damages and not whether respondent suffered a loss or injury or not. In his attempt to monitised the loss of damages, he considered N80,000.00 claimed for psychological trauma manifestly too high and reduced the same to N40,000.00. The relevant portion of his judgment which is clear, unambiguous and unequivocal should not be read to mean that the respondent failed to prove suffering psychological trauma. Rather he carefully weighed the quantum of damage rejected N80,000.00 for psychological trauma suffered and settled for N40,000.00. In the light of the authorities his conclusion is impeachable. (sic)
The award is not contested on the ground that it was a claim for interest which can be quantified and precise measure of damage undertaken. See Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370, 387 where the Supreme Court considered award of general damages for destruction of economic trees whose names, nature and economic values are known as improper. And also the issue of awarding general damages in contract. It is equally true that the matter, both at the trial and in this Court, was not contested on the ground of respondent’s right for damages for psychological loss suffered or otherwise. The two questions will not be considered by this court since it is not in issue in this appeal.
The appellant failed to appreciate the import of the judgment concerning award of N40,000.00 general damages he would probably not have raised a finger against it or contest the same on grounds other than onus of proof and pleadings.
Issue 5 is resolve against the appellant grounds 9 and 8 related thereto fail and are dismissed. Ground 7 is not related to any of the issues canvassed in the appeal. I am not unaware that the respondent related it along with grounds 8 and 9 of his own issue 3. But he is not the owner of the appeal. He has no notice of appeal before us. Ground 7 is deemed abandoned and is struck out.
All grounds of appeal having failed, the appeal fails and it is dismissed. The decision of the learned trial judge is affirmed with order as to costs assessed at N4,000.00 in favour of the respondent.
MAHMUD MOHAMMED, JCA
I have read before today the judgment of my learned brother Salami JCA which he has just delivered and have found myself in complete agreement with the reasoning and conclusions reached by him in resolving all the issues that arose for determination in this appeal. I am thus of the view that the appeal lacks merit and therefore ought to be dismissed.
Close examination of the records of this appeal has clearly revealed the circumstances surrounding the raising of the defence of Sharikat al-mudharaba under Islamic Law by the appellant at the lower court in his original statement of defence and counter claim, the appellant has stated quite plainly in paragraph 3 that the business relationship between him and the respondent in the transaction that gave rise to the dispute between the parties was governed by the Partnership Act 1890. That paragraph of the statement of defence of the appellant dated 14/6/94 for the avoidance of doubt at page 23 of the records reads:-
“The defendant admits paragraphs 3 and 4 of the statement of claim and further avers that his business relationship with the (sic) defendant is partnership business venture and defendant also carries on his own personal business and that this relationship is governed by the Partnership Act 1890 which is hereby pleaded.”
However, in a rather dramatic somersault in his defence, the appellant decided to change the nature and character of the business relationship between him and the respondent by filing an amended statement of defence and counter claim dated 16/2/95 at the court below in which paragraph 3 was amended to read; –
“3. That the defendant admits paragraphs 3 and 4 of the statement of claim and further aver that his business relationship with the (sic) defendant is governed by Islamic Law Principles of Al-Sharikat Al-Mudharaba.”
The question is, when did the nature and character of business relationship between the parties change? Certainly it is not possible for this fundamental change to take place while the dispute between the parties was already pending at the court below in the present action for determination. However having regard to the contents of paragraph 4 of the amended statement of defence and counter claim, the appellant was merely trying to entice the lower court to absolve him of any liability to the respondent’s claim by hiding under the cover of the principles of Islamic Law which was not in the contemplation of the parties throughout their business relationship before the arising of the dispute between them. The learned trial Judge was right in refusing to be so lured.
Accordingly, there is no merit at all in this appeal which is hereby dismissed. The judgment of the lower court is affirmed. There shall be N4,000.00 costs to the respondent.
A.O. OMAGE, JCA.
I have read before now the judgment of my learned brother Isa Ayo Salami, JCA, and state that I agree with the reasoning and the conclusions thereat. I wish to comment on the additional grounds of appeal filed by the appellant. I have read over and over the nine not ten grounds of appeal as recorded in the appellant brief, and can make no sense of any of the grounds, and the issues formulated thereon. It is clear to me that the learned counsel for the appellant has failed to acquaint himself with the basic rules of filing appeals in this court. The submission of the learned counsel for the appellant in the court below, as contained in the printed record, shows little knowledge of the elements of law. How else can it be explained where a common law lawyer in a common law court confused the common law principles of contract with Islamic doctrine, when an appeal the said counsel introduced the principle of Sharikat al Mudharaba whereas the issue at hand is on the common law rule of contract. The principle of Sharikat al mudharaba does not apply to a case of personal law under the Islamic Law. Sharikat al mudharaba which directs the portion of loss to be taken by a financier of a failed project could apply automatically under the Islamic law of succession. Not so in Islamic personal law. It is not shown by the appellant that the appellant and the respondent previously agreed that their transaction would be under the Islamic law, for it remains true that without a mutual agreement even as both parties are of the Muslim faith, Islamic law will not apply. There must be a previous agreement that the transaction between the parties is to, be governed by Islamic law.
I am in agreement as recorded in the lead judgment that the appellant counsel has confused one set of particulars to a ground of appeal, for another ground of appeal. The result is a scenario of confusion. The grounds of appeal are rightly struck out.
I agree that the appeal should fail, and be dismissed. The decision of the court below is affirmed. I subscribe to the order for costs made in the lead judgment of my brother Isa Ayo Salami, JCA.
Cases referred to in the judgment:
Abiodun v. Adehin (1962) 1 All NLR 550
Adene v. Danturbu (1994) 2 SCNJ 130; (1994) 2 NWLR (Pt. 328) 509, 528
Adisa v. The State (1991) 1 NWLR (Pt. 168) 490
Agu v. Ikwadibe (1991) 3 NWLR (Pt. 180) 358
Akun v. Mangu L.G.C. (1996) 4 NWLR (Pt. 441) 207, 215
Aniekwe & Ors. v. Okereke (1996) 6 NWLR (Pt. 452) 60
Are v. Adisa (1967) NMLR 304
Ayologu v. Agu (1998) 1 NWLR (Pt. 532) 129, 143
Bakare v. ACB Ltd. (1986) 3 NWLR (PT. 36) 47, 57
Bereyin v. Gbogbo (1989) 1 NWLR (Pt. 97) 372, 380
Chevron Nigeria Ltd. v. Onwgbechi & Ors. (1996) 3 NWLR (Pt. 437) 404
Chukwunta v. Chukwu & others 14 WACA 341.
Davey v. Bentinck (1893) 1 QB 185
Drummond-Jones v. British Medical Association (1970) 1 WLR 688, (1970) 1 All ER 1094.
Dumez (Nig.) Ltd. v. Ogboh (1972) 1 All NLR 244.
Honica Sawmill Nigeria Ltd. v. Mary Okotie Hoff (1994) 2 NWLR (Pt. 326) 252, 262.
Ijale v. Leventis and Co. (1959) SCNLR
Incar Motors v. Benson (1975) 3 SC 117.
Kudu v. Aliyu (1992) 3 NWLR (Pt. 213) 615
Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 157
Lar v. Stirling Astaldi (1977) 11- 12 SC 53, 63
Modupe v. The State (1988) All NLR 371, 375
Nigeria Maritime Services Ltd. Alhaji Bello Afolabi (178) 2 SC, 79
Noore v. Lawson 31 TLR 418
Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 670 718
Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370, 387.
Ogomo v. Eseh (1987) 4 NWLR (Pt. 64) 216, 239
Omoruwa v. Wahab (1976) 4 SC 37, 50
Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799
Republic of Peru v. Peruvian Guano Co. 35 Ch. D 495
Sule Agbetola & Anor. v. Lagos State Executive Council & Anor. (1991) 6 SCNJ 1, 12, (1991) 4 NWLR (Pt. 188) 614
Tewogbade v. Arasin Akande (1968) NMLR 404, 408
U.B.N. Limited v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558
Uche William v. The State (1992) 10 SCNJ 74, 87
Union Bank of Nigeria v. Ozigi (1994) 3 SCNJ 42
Wenlock v. Moloney (165) 1 WLR 1238, (1965) 2 All ER 871.
Statutes referred to in the judgment:
Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990, S. 137(1).
Partnership Act, 1890.