3PLR – CHRISTOPHER N. TANKO V. GARDUGA N. NONGHA

Published by Law Nigeria Admin at October 10, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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TANKO V. NONGHA

CHRISTOPHER N. TANKO

V. GARDUGA N. NONGHA

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 10TH DAY OF FEBRUARY, 2005

CA/J/257/2003

3PLR/2005/31 (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

AMIRU SANUSI, JCA

IFEYINWA CECILIA NZEAKO, JCA

IKECHI FRANCIS OGBUAGU, JCA

BETWEEN

CHRISTOPHER N. TANKO – Appellant(s)

AND

GARDUGA N. NONGHA – Respondent(s)

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

MAIN ISSUES

EVIDENCE – EVALUATION OF EVIDENCE: Whether the trial court has the primary duty to evaluate all the evidence before coming to a conclusion

“For it is also well settled that a defendant may still be entitled to judgment without calling evidence if, for instance, the plaintiff himself has failed to call any evidence whatsoever on a material element in his case or the evidence which he has called is so patently discredited that no reasonable tribunal can believe it. Balogun v. U.B.A. Ltd. (supra). This sound principle is based on the well known grounds that the primary duty of the trial Court is to evaluate all the evidence before it before coming to any conclusion. See Ali v. Obande (1999)9 NWLR (Pt 620) 563.” Per NZEAKO, J.C.A. (P. 26, paras. D-F)

EVIDENCE – ONUS OF PROOF: Circumstances under which the onus or burden of proof will shift to the defendant

“But it is also settled, that before the onus shifts to the defendant, the plaintiff must have made out a prima facie case showing that he is entitled to the relief(s) he seeks. See Aromire V. Awoyemi (1972) 2 S.C. 1; Kaiyaoja V. Egunla (1974) 12 S.C. 55 and Onwuama V. Ezeokoli (2002)5 NWLR (Pt.760) 353 @ 367. This is stated to be a pre-test that the burden is on a plaintiff to prove his case. It is when the defendant testifies or adduces evidence, that the case is decided on the balance of probabilities. In other words, a plaintiff, must succeed on the strength of his own case and not on the weakness of the defendant’s case. If this onus, is not discharged (as in the instant case leading to this appeal) the weakness of the defendant’s case or his not giving evidence in support of his statement of defence which in the circumstances, is deemed abandoned by him, will not help him and the proper judgment, will be for the defendant. The rationale behind this principle is that the plaintiff, having sought the relief(s) from the court, has failed to establish his entitlement thereto, ought to have his claim rejected. See Cobblah V. Gbeke 12 WACA 294; Kodilenye V. Odu (1935) 2 WACA 336 @ 337; Frempong II V. Brempong (1952) 14 WACA 13 and Woluchem V. Gudi (981) 5 S.C. 291 just to mention but a few. If his case is weak, it is settled that it does not matter that the defendant’s case is weak or that he makes no case at all. The plaintiffs case will fail. See Adeniran V. Alao & Anor (Infra). It must be borne in mind and this is also settled, that the onus or burden of proof, does not shift to a defendant, until it has been proved by a plaintiff with reliable and credible evidence. See Oboru V. Rivers State Housing & Development Authority & Anor (1997) 9 NWLR (Pt. 521) 423 @ 445 C. A.; Agu V. Nnadi (2002)18 NWLR (Pt. 798)103 @128; Chief Ibori V. Engr. Agbi & 5 Ors (2004) 6 NWLR (Pt.868) 78; and Adeniran V. Alao & Anor (2001) 12 SCNJ. 337 @ 355. and many others.” Per OGBUAGU, J.C.A. (Pp. 32-33, paras. B-E)

CONTRACT – PARTIES TO A CONTRACT: General rule on doctrine of privity of contract

“It continues to be the law that a contract binds parties thereto, not strangers. It cannot be enforced by or against a person who is no party thereto. See A-G Federation v. A.I.C Ltd. (2000)10 NWLR (Pt 675)293 at 306, per Mohammed JSC. In Alforin v. A-G Federation (1996) 9 NWLR (Pt 475)634 SC at 655 also reported in (1996)12 SCNJ 236 Iguh JSC had this to say (at page 556 Para E-F): “It is indisputable as a general rule that one who is not a party to a contract cannot make a claim in contract in respect thereof unless, of course, he is privy thereto or has acquired some legal interest, say by way of assignment of any rights thereunder. See Dunlop v. Selfridge (1915) A.C. 847 and Chuba Ikpeazu v. A.C.B. Ltd. (1965) NMLR 374. The doctrine of privity of contract, as a general rule, is that a contract cannot confer rights or impose obligations on strangers to it. The appellants being total strangers to Exhibits P-P1 may not establish a case in contract against the respondents.” At page 456 Para F, the learned jurist, after considering the documents in that case, to see if they created any contractual relationship between the appellants and the respondents therein, concluded that it did not. He reaffirmed the law thus:- “… As a general rule, a contract affects only the parties to it and cannot be enforced by or against a person who is not a party thereto, even if the contract was made for his benefit and purports to give him the right to sue or to make him liable upon it. See Keighley, Maxsted and Co. v. Durat (1901) AC 240 HL.” The foregoing is the same principles as set out in the Supreme Court case of Chuba Ikpeazu v. African Continental Bank Ltd. (1965) MLR 274 at 379 (per Ademola CJN, Brett, Bairamian, Onyeama & Ajegbo J.J.S.C). See also Chitty on Contracts Volume 1, 21st Edition p63, 8 Halbury’s Laws of England (3rd Edition) p66 para. 110 and the case of Negbenebor v. Negbenebor (1971)1 All NLR 210. These principles apply verbatim to this case.” Per NZEAKO, J.C.A. (Pp. 23-25, paras. G-B)

ACTION – PLEADINGS: Whether parties are bound by their pleadings

“On the issue of pleadings, it is indeed settled law that parties are bound by their pleadings and the Plaintiff/Respondent was the one who pleaded and tendered Exhibits 3 and 5 as the contract of sale on which he based his claim, the Court is bound to give effect in its judgment to them, not on any other thought which crossed his mind.” Per NZEAKO, J.C.A. (P. 23, paras. A-B)

COURT – POWER OF COURT: Whether the Court has the power to speculate or substitute its own views on issues in contention before it outside the evidence adduced and canvassed by the parties

“Speculation never forms the basis for a decision of a Court of law. Rather it is evidence which must form the basis. No Court has the power to speculate or substitute its own views on issues in contention before it outside the evidence adduced and canvassed by the parties. See Oweh v. Oshibanjo (1965)1 All NLR 72 at 75, Borno Holding Co. Ltd. v. Alhaji Hasssan Bogoco (1971)1 ALL NLR 324 at 333. A Court may draw in ferences from facts and evidence before it, but they must be reasonable deductions from the facts, not wild and speculative. See Ivienagho v. Bazuaye (1999)9 NWLR (Pt 620)552 at 561, cited by counsel for the Appellant as reported in (1999)6 SCNJ 235 at 243-244. Uwaifo JSC in the case, has this to say at Page 561 of the NWLR, and this is of uttermost importance, that a Court cannot decide issues on speculation no matter how close what it relies on may seem to be to the facts. The learned jurist then continued further:- “Speculation is not an aspect of inference that may be drawn from facts that are laid before the court. Inference is a reasonable deduction from facts whereas speculation is a mere variant of imaginative guess which, even when it appears plausible, should never be allowed by a court of law to fill any hiatus in the evidence before it: see Overseas Construction Co. Ltd. v. Creek Enterprises Ltd. (1985)16 NSCC (Pt 2) 1371 at 1375; (1985)3 NWLR (Pt.113) 409″.” Per NZEAKO, J.C.A. (Pp. 21-22, paras. F-F)

JUDGMENT AND ORDER – STYLE IN WRITING JUDGMENT: Whether there is a standard format in writing judgments

“It is now settled that the style of Judges in writing judgments defer. In Other words, there is no set standard or approach to the writing of a judgment. But a judgment of a trial court must demonstrate in full, a dispassionate consideration of the issues properly raised and heard and must reflect the result of such exercise. See Duru & Anor V. Nwosu (1989) 4 NWLR (Pt. 113) 24 @ 36, 55 (1989) 7 SCNJ. 154 citing several other cases in this regard and Nigerian Bottling Co. Plc & Anor V. Borgundu (1999) 2 NWLR (Pt. 591) 408 @ 425 C. A.” Per OGBUAGU, J.C.A. (P. 30, paras. A-D)

EVIDENCE – UNCHALLENGED OR UNCONTROVERTED EVIDENCE: Nature of evidence and the attitude of trial Court to an unchallenged or uncontroverted evidence by the opposite party

“The principle in the case of Omoregbe v. Lawani (1980) 3-4 SC 108, Egbunike v. ACB Ltd. (1995)2 NWLR (Pt. 375) 34, Broadline Enterprises Ltd. v. Monterey Maritime Corporation (1995) NWLR (Pt. 417)27, Yusuf v. Kupper International N.V. (1996) 5 NWLR (Pt. 446)17 and such other legal authorities relating to the nature of the evidence and the attitude of a trial Court to such evidence which is unchallenged or uncontroverted by the opposite party, and may be accepted is described by Uwaifo JSC in Ivienagbor v. Bazuaye (infra) as- “…evidence which is unchallenged through cross examination, not controverted by other evidence and is not by itself incredible”. The learned trial Judge seemed to believe that the failure of the Defendant/Appellant to call any evidence is detrimental to him and entitled the Plaintiff to judgment. It is not the case in this matter. The principle applied by the Courts in the above cases and others is not in a straight jacket. This is to the effect that where a defendant fails to call evidence in a civil case, the plaintiff would be entitled to judgment on minimal proof see also A-G Oyo State v. Fairlakes Hotels Ltd. (1989)5 NWLR (Pt. 12) 255. Balogun v. U.B.A. Ltd (1992)6 NWLR (Pt. 247)336 at 351 -352.” Per NZEAKO, J.C.A. (Pp. 25-26, paras. D-C)

MAIN JUDGMENT

IFEYINWA CECILIA NZEAKO, J.C.A., (Delivering the Leading Judgment):

The Respondent in this appeal was the Plaintiff in Suit No. TRSJ/88/2001 which he instituted on 26th, October 2001 at the High Court of Justice, Jalingo Taraba State of Nigeria.

The suit came before Danjuma J. Parties exchanged pleadings. At the hearing, the Plaintiff testified and called two witnesses. They all testified in the absence of the Defendant. Later however, on the application of the defence counsel Mr. Yaro, the Plaintiff and his witnesses were recalled and were cross-examined.
The Defendant did not testily nor did he call any witness. Counsel for the parties addressed the Court. On 22nd May, 2003, the learned trial Judge delivered judgment in the action in favour of the Plaintiff. The Defendant being dissatisfied has appealed to this Court.

He filed 4 grounds of appeal and later filed and served his brief of argument on the Respondent who on his part failed to file any brief of argument. On 10/5/2004, this Court granted the Appellant leave to argue the appeal exparte, based on the Appellant’s brief of argument alone and set it down for hearing.
On the hearing date of the appeal, being 25/11/2004, the Respondent was not in Court and no counsel represented him, though served on 10/9/2004. We therefore proceeded to hear the appeal in the absence of the Respondent based on the appellant’s brief alone as permitted by the Rules of this Court. Learned counsel for the Appellant E.A. Nyaro Esq., then adopted his brief of argument filed on 10/2/2004 and urged the Court to allow the appeal.

In his brief of argument, learned counsel for the Appellant had identified the following two issues for determination from the 4 grounds of appeal thus:-

(1) Whether on the pleadings and evidence led the learned trial Judge was correct in law when he held that the Plaintiff/Respondent as entitled to judgment? (distilled from grounds 1,2 & 3).

(2) Whether the order by the learned trial Judge awarding the Plaintiff/Respondent the sum of N200,000.00 as aggravated damages can be justified in law? (from ground 4).

On issue No.1, learned counsel for the Appellant urged this Court to answer the same in the negative, for the learned trial Judge erred in law when he discountenanced Exhs 3 and 5, the pivot of the Plaintiff/Respondent’s claim. That Exhibits 3 and 5 reveal that the Respondent entered into contract agreement for the purchase of land with one Livinus B. Swanikuru on 15th April, 1999. This fact was clearly pleaded in paragraph 3 of the statement of claim, which fact the Defendant/Appellant admitted in paragraph 1 of his statement of defence.
That the Respondent admitted under cross-examination that Mr. Livinus Swanikuru his vendor is alive and lives in Jalingo.

Counsel referred to the evidence of PW3, Mrs. Abisha Shanaki who admitted that she was the agent of the Plaintiff and stated that she accompanied the Defendant to see the vendor/owner, Mr. Swanikuru because he knew him, the real Owner of the land measuring 50 x 100sq metres. Learned counsel submitted that in spite of the unchallenged, and uncontradicted evidence of PW3, the Court below came to a wrong decision which did not flow from the evidence, thus occasioning a miscarriage of justice. He further contended that the decision of the court below was mere speculation which was condemned by the Supreme Court in Ivienagbor v. Bazuaye (1999)6 SCNJ 235 at 243-244.

He further submitted that the Court below was in grave error when it discountenanced Exhs 3 and 5 and invoked Section. 132 of Evidence Act which he misconstrued vis-a-vis Exhs 3 & 5 which were clear and left no room for any oral evidence as held by the Court.

Counsel pointed out that parties are bound by their pleadings. He submitted that the evidence of the Respondent’s witnesses were at variance with his pleadings in paragraphs 3 – 6, 9, 10 and 16(b) and the testimony of PW1. That there were material contradictions, which he pointed out. He argued that the court below was in error when it held that the Appellant was the vendor. For, he was not a party to the contract by virtue of doctrine of privity of contract. Alfotrin v. A-G Federation (1996) 12 SCNJ 236 at 254-256 relied on.

He concluded that Exhs 3 and 5 could not be enforced against the Appellant as held in Okoebor v. Eyobo Eng. Services Ltd. (1991)4 NWLR (Pt.187)553 at 561. UNIJOS v. Carten (Nig.) Ltd (1992)5 NWLR (Pt.241) 352 at 365.
He submitted that the decision of the court below is perverse, the Court having failed to evaluate the evidence, Onwugbufor v. Okoye (1996)1 SCNJ 1 at 33 cited.

Learned counsel for the Appellant urged us to hold that the learned trial Judge’s judgment in favour of the Respondent was erroneous in law and could not stand as the Respondent did not make out a case for the Appellant to answer, as he was not a party to Exhs 3 and 5, and the evidence of the Respondent was so manifestly discredited that no reasonable tribunal can believe same.
The Plaintiff/Respondent’s claim in the suit against the Defendant was for the following reliefs:-

(a) An order of the Hon. Court compelling the Defendant to surrender the said plots of land referred to in paragraph 10 of this statement of claim unencumbered to the plaintiff or;

(b) ALTERNATIVELY, the sum of fifty thousand Naira (N50,000.00) been (sic) money had and received for a consideration not done.

Sum expended on Mason, Labourers at the request of the Defendant by the plaintiff:… N15,500.00.
Compensation for 4 trips of sand already deposited on the land, at the request of the defendant, by the plaintiff… N4,800.00.
Compensation paid by plaintiff on the WELL dug on the Land N2,000.00.
TOTAL:- N22,300.00

(d) General damages and;

(e) Cost of filling and prosecuting this action.

I have carefully examined the record of proceedings in this matter, particularly the pleadings and the evidence of the plaintiff and his witnesses, as well as the relevant exhibits particularly Exhs 2, 3 and 5.

In paragraph 3 of his statement of claim, the Plaintiff averred as follows:-
“The plaintiff states that he is bonafide owner of the landed properly situate and lying South East of T.H.U. Abuja ward Jalingo which said property measures 100ft x 100ft by virtue of a sale agreement dated 15th April, 1999 which he bought from one Mr. Livinus B. Swanikuru through Mrs. Abisha Shamaki who acted as an agent and a witness to the vendor therein. The sale agreement is pleaded and will be relied upon at the hearing of suit. (Underlining supplied).
In paragraph 11 of his statement of defence the Defendant/Appellant admitted the foregoing paragraph 3 of the statement of claim, thus

“The Defendant admits paragraphs 1, 2, and 3 of the statement of claim but denies the plaintiffs averment contained in paragraphs 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15 and 16 of the statement of claim and shall at the trial of the suit put the plainliff to the strictest proof thereof” (See page 21 of the records).

In his evidence in-chief the Plaintiff testified and tendered Exhs 1 -5.

In particular, Exhs 2, 3 and 5 tendered as the contract of sale executed by the parties, show that the real vendor of the land referred to in both Exhs 3 and 5 is a man whose name appears as “vendor’. He is Mr. Livinus B. Swanikuru and he signed both documents, each of which is titled:-

“LAND PURCHASE AGREEMENT”

Both documents bear the typed date of 15th April, 1999 in their line 1. Each of the parties thereto, Swanikuru and Nongha, the Plaintiff/Respondent herein signed as Vendor and Buyer respectively. Others signed as witnesses. All inserted the same date of 15/4/99 in long hand. The Appellant signed as witness.

In Exh 3, the Plaintiff/Respondent signed as Buyer, the Defendant/Appellant also signed as witness, so did one Hon. Zakari Kamai.

In Exh. 5 bearing exactly the same date of 15th April, 1999 and similarity signed and dated by the same vendor, Mr. Livinus B. Swanikuru, the name of same Buyer i.e. the Plaintiff/Respondent appears. Again the Defendant/ Appellant signed as witness, so did a lady Mrs. Abisha Shamaki who testified for the Plaintiff/Appellant at the trial as PW3.

This is what PW3 said in her evidence in Court:

“…I know plaintiff, we work in the same place.

There is no transaction between me and plaintiff except that there was a time when he came to me request that I find a piece of land for him to purchase. I then went and got a piece of land behind T.H.U. Jalingo. I went together with Christopher Tanko (defendant) because he knew the real owner of the land the dimension of the land is 50x 100sqm.

Mr. Nugha said he was going to give Mr. Zubairu the money for the land. We then went to Zubairu. Christopher collected the money and signed. He collected N25,000.00. We i.e. and Defendant (Tanko) went and paid the owner of the land the purchase price of N25,000.00.

The real owner of the land is Mr. Livinus Swanikuru, I then took the sales agreement to Nugha plaintiff and I with Swanikuru and defendant went and showed the plaintiff the land purchased plaintiff was given the original sales agreement.

That is all.”
(Underlining supplied for attention).

It is my view that the foregoing pleadings and evidence before the Court below, undoubtedly show that the Vendor with whom the Respondent entered into a contract of sale/purchase of the land in issue is the man named as such by the Plaintiff/Respondent in his pleadings, also in Exhs 3 and 5 i.e. Livinus B. Swanikuru, not the Defendant/Appellant.

Indeed, this view is fortified by Exh 2, a letter dated 2nd July 2001, addressed to the Appellant by the Respondent wherein he described the property as “the land you bought for me“. He was bringing to the attention of the Appellant what transpired on 1st July, 2001. According to him, as he wrote in paragraph 1 of Exhibit 2.

“I took a tipper driver to show him my plot which you bought for me so that he can drop more trips of sand…”

The evidence of the Respondent is not in unison with his pleadings and the evidence of his key witness PW3.

This is what the Plaintiff said in his evidence in chief gleaned from page 7-11 of the Records:-

“…I know the defendant. I had an arrangement with Mr. Christopher Tanko to sell a piece of land to me at N25,000.00. The size of the land was 100 x 100 the said land is said to be at South East of T.H.U. i.e. the Tractor Hiring Unit Jalingo.
Christopher Tanko showed that same piece of land to me.

I then went ahead to pay the said sum of N25,000.00 to Christopher Tanko piece meal.

The money was paid through one of his head of Departments called Mallam Zubairu Maidawa. I insisted and Christopher Tanko had to make a written undertaking before collecting any sum of money.

There was an agreement written. I have a copy of the agreement.

I cannot recollect the dates of tile series of undertakings made. I collected the series of undertakings as incorporated in one document from the H.O.D. Zubairu Maidawa. At the beginning of the arrangement, the first installment paid was N10, 000 the second installment at a later date was another N10,000.00 and the last payment of N5, 000 was paid to him personally.”

He continued:

“After Exhibit 1 the piece of land was shown to me by Mr. Tanko which I on the spot discovered that there was somebody already on that land. I inquired why another person was on the land, he said I should not worry.

That he was going to clear that personally that is – he was going to talk and settled with that other person personally, he later brought to me a written lands Sale Agreement. He signed it and I signed it too. I then collected it. I signed as a buyer of the land. He also signed as a witness. I remember the person I met on the land is one Joshua. Surname I can’t remember.

I then discovered that development was going on the land when I was going round to ensure safety of my land. I discovered that a Well was dug on that piece of land. 4 trips of sand were dumped on that piece of land.
And a small foundation for 2 or 3 rooms I can’t remember was dug on the piece of land:

When I draw the attention of Mr. Tanko he asked me to fence the piece of land so that I could stop any encroachment. I told him that the people I saw encroaching on that land may not allow me because I would not like to go into confrontation with anybody.

But Christopher insisted that he will go personally to supervise the fencing of that piece of land. So he asked me to get the mason and worker, (labourers) ready and call on him.

That I went ahead and arranged with a mason together with his labourers.

The total cost of labour and materials was N15, 500.

The mason went personally and called Christopher who then joined them to the site. But most unfortunately both Christopher, the mason and the labourers were sent away from the plot by the said Joshua and his people. I was not on the site. It was the said defendant Christopher that informed me when I confronted him on the result of his request. So Christopher could not tell me any other thing.
Next, I decided to give Christopher a written note requesting him to go back to the piece of land and ascertain the further development going on; so that he should tell me of the next progress to be made. Since be collected my note he refused further comment. He has been shying away from me. The note is with defendant I have a duplicate copy of the note and the original is with the defendant. I cannot recall the date of the note, I signed it though.”
(This note is Exhibit 2).

Then the Respondent testified thus regarding the sale agreement:-

“I can identify agreement. I can’t recall date of signature, but I signed personally. Defendant signed the document also.”

The Court recorded this when the agreement was tendered:-

“Document, entitled land purchase agreement dated 15/4/99 between Mr. livinus B. Swanikuru and G.N. Nongha is admitted in evidence and marked as Exhibit 3.

Even most significant is the Respondent’s admission in cross-examination at page 31 of the records.

He said,

“The basis of my claim is Exh. 3. It is true that Mr. Livinus Swanikuru my vendor is alife, and lives in Jalingo. Christopher N. Tanka the defendant collected the sum of N25,000 for one plot which he advertised to me”.

Exh. 2, read with the pleadings set out above and the evidence of PW1 and PW3, simply identities the Appellant as an agent. His principal is known to the Respondent and all others concerned. The Vendor of the property to the Respondent is unequivocally Swanikuru, not the Appellant.

The foregoing notwithstanding, the learned trial Judge held as follows in his judgment:-

“… True, Exhibits 3 and 5 existed but it was clear from the evidence of plaintiffs P.W.1, P.W.2 and P.W.3 that Swanikuru indicated as vendor on Exhibits 3 and 5 was not introduced to plaintiff during the payments made by him through P.W.2. Those Exhibits were never intended to be the agreement between the Plaintiff and defendant who was paid the sundry sums. That Exhibits 3 and 5 were backdated preceding Exhibits 1 and 2 clearly is indicative or a situation of wrong dating and called for explanation that showed as it were that it was not the intended agreement as the vendor expressed thereon was not the vendor intended or person plaintiff was transacting business with. Indeed those agreement (sic) as expressed showed not only lack of capability on the part of Swanikuru as a purported vendor but also want of due execution as proper vendor was expressed as a witness and purported vendor not even known to the plaintiff was indicated.

Plaintiff testified to this fact and PW3 clearly corroborated this fact when she, said “and” I and Defendant took plaintiff to the plot because it was only defendant who knew Swanikuru plaintiff was dealing with only the defendant as his vendor.

The agreement was back dated antedating the deal between the parties herein.

This is to confirm plaintiff’s evidence that defendant told him he had a land given to him by Swanikuru in payment for services rendered to him.

I think, it must be an attempt to protect himself and assure himself that Swanikuru did not cheat him on the land given to him which he was selling.
Instead of assuring that he had a vested and effective and actual occupation before alienating the defendant protected himself to the detriment of the plaintiff by drafting as he did the agreement in the name of the purported vendor Swanikuru as if to be saying “as for me – I’ve been given the land whether you are able to have a legal title effectively passed to you is your business”.

He then concluded:

“I accordingly find as follows:-

(1) That the defendant is in breach of contract for the sale of or plots of land to plaintiff. That there has been a failure of consideration in respect of Exhibits 3 and 5 as vendor were wrongly expressed. That I could have ordered for the rectification of the deed or document of agreement but since I have not been urged to do, I cannot grant a relief not sought by the parties or claimant.” (See p47-48 of the records).

Learned counsel for the Appellant had submitted that the foregoing does not flow from the evidence on record and has occasioned a grave miscarriage of justice. He is correct.

It is my view that it does not flow, not only from the evidence but also from the pleadings as can be seen from the foregoing.

The reasoning of the Court below is based on mere speculation. Speculation never forms the basis for a decision of a Court of law. Rather it is evidence which must form the basis.

No Court has the power to speculate or substitute its own views on issues in contention before it outside the evidence adduced and canvassed by the parties. See Oweh v. Oshibanjo (1965)1 All NLR 72 at 75, Borno Holding Co. Ltd. v. Alhaji Hasssan Bogoco (1971)1 ALL NLR 324 at 333.

A Court may draw inferences from facts and evidence before it, but they must be reasonable deductions from the facts, not wild and speculative. See Ivienagho v. Bazuaye (1999)9 NWLR (Pt 620)552 at 561, cited by counsel for the Appellant as reported in (1999)6 SCNJ 235 at 243-244.

Uwaifo JSC in the case, has this to say at Page 561 of the NWLR, and this is of uttermost importance, that a Court cannot decide issues on speculation no matter how close what it relies on may seem to be to the facts.

The learned jurist then continued further:-

“Speculation is not an aspect of inference that may be drawn from facts that are laid before the court. Inference is a reasonable deduction from facts whereas speculation is a mere variant of imaginative guess which, even when it appears plausible, should never be allowed by a court of law to fill any hiatus in the evidence before it: see Overseas Construction Co. Ltd. v. Creek Enterprises Ltd. (1985)16 NSCC (Pt 2) 1371 at 1375; (1985)3 NWLR (Pt.113) 409”.

The learned trial Judge ought not to have read into Exhs 3 and 5 the sale agreements what they do not convey and not in accord with the Plaintiffs/Respondent’s pleadings and evidence. Although, he said he “must do justice by looking at the facts and tenure of the transaction giving rise to this case and was bound to decide based on justice not technicalities of the law (sic), with due respect, he failed to do justice.

On the issue of pleadings, it is indeed settled law that parties are bound by their pleadings and the Plaintiff/Respondent was the one who pleaded and tendered Exhibits 3 and 5 as the contract of sale on which he based his claim, the Court is bound to give effect in its judgment to them, not on any other thought which crossed his mind.

Further on the matter of the failure of the Respondent to sue his vendor named in Exhs 3 and 5, he admitted in cross examination knowing and that his vendor resides in Jalingo Exhs 3 and 5 are the contracts of sale of the land in question. It is Swanikuru who is the vendor or the Respondent named therein, not the Appellant. PW3 who is the Respondent’s witness testified to this. The evidence on record shows that at best, the Appellant who signed the documents as a witness was only an agent.

The finding of the learned trial Judge that the Defendant was the “real vendor” and in breach of the contract of sale of the two plots of land i.e. 100 x 200, is clearly not supported by the Plaintiff/Respondent’s pleadings and the evidence on record.

From the pleadings and the evidence before the court, there was no privity of contract between the Plaintiff/Respondent and the Defendant/Appellant which would clamp any liability in contract on the Appellant. It continues to be the law that a contract binds parties thereto, not strangers. It cannot be enforced by or against a person who is no party thereto. See A-G Federation v. A.I.C Ltd. (2000)10 NWLR (Pt 675)293 at 306, per Mohammed JSC. In Alforin v. A-G Federation (1996) 9 NWLR (Pt 475)634 SC at 655 also reported in (1996)12 SCNJ 236 Iguh JSC had this to say (at page 556 Para E-F):

“It is indisputable as a general rule that one who is not a party to a contract cannot make a claim in contract in respect thereof unless, of course, he is privy thereto or has acquired some legal interest, say by way of assignment of any rights thereunder. See Dunlop v. Selfridge (1915) A.C. 847 and Chuba Ikpeazu v. A.C.B. Ltd. (1965) NMLR 374. The doctrine of privity of contract, as a general rule, is that a contract cannot confer rights or impose obligations on strangers to it. The appellants being total strangers to Exhibits P-P1 may not establish a case in contract against the respondents.”

At page 456 Para F, the learned jurist, after considering the documents in that case, to see if they created any contractual relationship between the appellants and the respondents therein, concluded that it did not. He reaffirmed the law thus:-

“… As a general rule, a contract affects only the parties to it and cannot be enforced by or against a person who is not a party thereto, even if the contract was made for his benefit and purports to give him the right to sue or to make him liable upon it. See Keighley, Maxsted and Co. v. Durat (1901) AC 240 HL.”

The foregoing is the same principles as set out in the Supreme Court case of Chuba Ikpeazu v. African Continental Bank Ltd. (1965) MLR 274 at 379 (per Ademola CJN, Brett, Bairamian, Onyeama & Ajegbo J.J.S.C). See also Chitty on Contracts Volume 1, 21st Edition p63, 8 Halbury’s Laws of England (3rd Edition) p66 para. 110 and the case of Negbenebor v. Negbenebor (1971)1 All NLR 210.
These principles apply verbatim to this case.

The Court below ought to have properly examined the evidence led by the Plaintiff and his witnesses. He did not do so. It does not follow that a Court must accept every evidence led by a plaintiff simply because the defendant led no evidence as the learned trial Judge seemed to conjecture. The evidence which is unchallenged by other evidence but which by itself is incredible ought not to be accepted. It is not qualified to be acted upon by the Court as did the Court below in this case. The principle in the case of Omoregbe v. Lawani (1980) 3-4 SC 108, Egbunike v. ACB Ltd. (1995)2 NWLR (Pt. 375) 34, Broadline Enterprises Ltd. v. Monterey Maritime Corporation (1995) NWLR (Pt. 417)27, Yusuf v. Kupper International N.V. (1996)5 NWLR (Pt. 446)17 and such other legal authorities relating to the nature of the evidence and the attitude of a trial Court to such evidence which is unchallenged or uncontroverted by the opposite party, and may be accepted is described by Uwaifo JSC in Ivienagbor v. Bazuaye (infra) as-
“…evidence which is unchallenged through cross examination, not controverted by other evidence and is not by itself incredible”.

The learned trial Judge seemed to believe that the failure of the Defendant/Appellant to call any evidence is detrimental to him and entitled the Plaintiff to judgment. It is not the case in this matter.

The principle applied by the Courts in the above cases and others is not in a straight jacket. This is to the effect that where a defendant fails to call evidence in a civil case, the plaintiff would be entitled to judgment on minimal proof see also A-G Oyo State v. Fairlakes Hotels Ltd. (1989)5 NWLR (Pt. 12) 255. Balogun v. U.B.A. Ltd (1992)6 NWLR (Pt. 247)336 at 351 -352.

For it is also well settled that a defendant may still be entitled to judgment without calling evidence if, for instance, the plaintiff himself has failed to call any evidence whatsoever on a material element in his case or the evidence which he has called is so patently discredited that no reasonable tribunal can believe it. Balogun v. U.B.A. Ltd. (supra). This sound principle is based on the well known grounds that the primary duty of the trial Court is to evaluate all the evidence before it before coming to any conclusion. See Ali v. Obande (1999)9 NWLR (Pt 620) 563.

In this matter, there is no doubt that the evidence elicited from the Respondent not only in cross-examination but in-chief from him and his witnesses, particularly PW3, his agent and the contents of Exhibits 3 and 5, which he tendered, totally discredited his claim against the Defendant/Appellant whom he ought not to have sued in the first instance, not being his vendor.
In the light of the facts and the state of the law as set out above, why the Plaintiff/Respondent did not sue Livinus Swanikuru whom he and his witnesses and documentary evidence show to be his vendor who was paid for the land, beats my imagination. The contract in Exhs 3 and 5 can only be enforced against Swanikuru.

The Appellant is no party to the contract but only a witness to the sale agreements- Exhs 3 and 5. This action for breach of the contract ought not to have been brought against him.

The foregoing is sufficient reason to allow this appeal, set aside the judgment of the Court below and dismiss the Plaintiff/Respondent’s claim.

Obviously, since issue No.1 is answered in favour of the Appellant, issue No.2 relating to and complaining of the award of aggravated damages no longer arises having regard to the fact that no liability in damages for breach of contract can be imputed to the Defendant/Appellant who is no party to the contract.

The appeal is therefore allowed, being meritorious. The judgment of Danjuma J., delivered on at the High Court of Justice Jalingo, Taraba State is hereby set aside. The Plaintiff/Respondent’s Suit No. TRSJ/88/2001 is dismissed.
As costs follow the event, the Appellant is entitled to costs assessed at N10, 000.00 against the Respondent.

AMIRU SANUSI, J.C.A.: I had the advantage of reading the lead judgment of my learned brother Nzeako, J.C.A. wherein she painstakingly treated all the issues canvassed by the parties in the appeal. I agree with her reasoning and the conclusion she arrived at that the appeal has merit. I accordingly allow it. I endorse the consequential order made in the lead judgment including one on costs.

IKECHI FRANCIS OGBUAGU, J.C.A.: I had the advantage of reading before now, the lead Judgment of my learned brother, Nzeako, JCA just delivered. I am in entire agreement with him that this appeal is meritorious and succeeds.
However, I wish to make my own contribution by way of emphasis. When this appeal came up for hearing on 25th November, 2004, the Court, noted that there was proof of service of the Hearing Notice on the Respondent personally on 10th November, 2004, but he and his counsel, were absent in Court without reason. Thereafter, Nyaro, E. A. Esq. -learned counsel for the Appellant, applied to withdraw their motion for stay of execution filed on 2nd December, 2003. The application was granted and the said motion was accordingly struck out. Mr. Nyaro then told the Court that the Appellant filed his Brief on 10th February, 2004. He adopted the same and urged the Court to allow the appeal.

Pursuant to Order 6 Rule 9(5) of the Court of Appeal Rules, 2002, the appeal, was treated as having been duly argued. Judgment was therefore, reserved till 7th February, 2005, but due to some unavoidable circumstances, the Judgment was adjourned to today 10th February, 2005.

I will pause here to note that in the “REGISTRAR’S STATLMENT” (sic) (meaning Statement), the Principal Registrar – Wilfred J. Nzaeak, stated inter alia, as follows:

“Evidence was adduced by both the parties (sic)…”

Nothing can be far from the truth. Although the Appellant filed a Statement of defence, he never, did not testify or call any witness. The learned counsel for the Appellant, merely applied for the re-call and cross-examination of the Respondent and his witnesses which application was granted. He duly cross-examined the Respondent but abandoned his intention to cross-examine the PW2 and PW3. At page 33 of the Records, the following appear at lines 34 to 37:

“NYARO: I rest that case of defendant on that of plaintiff and shall address the court. I ask for 16/12/02.
NUGA: It is alright.”

COURT: Case adjourned to 16/12/02 for address.” (the underlining mine).
It can therefore, not be over emphasized that Registrars who compile the Records of Proceedings and who issue their Statement, must be very careful about the “Statement” they issue and sign. Worse still, the Court’s notes/proceedings come even before the Statement of Claim which in fact superceded the writ.

It is now settled that the style of Judges in writing judgments defer. In Other words, there is no set standard or approach to the writing of a judgment. But a judgment of a trial court must demonstrate in full, a dispassionate consideration of the issues properly raised and heard and must reflect the result of such exercise. See Duru & Anor V. Nwosu (1989) 4 NWLR (Pt. 113) 24 @ 36, 55 (1989) 7 SCNJ. 154 citing several other cases in this regard and Nigerian Bottling Co. Plc & Anor V. Borgundu (1999) 2 NWLR (Pt. 591) 408 @ 425 C. A.

In the instant case, I must confess that the learned trial Judge with respect, clearly misconstrued and misapplied the facts emerging not only from the pleadings and the evidence of the Plaintiff/Respondent and his two (2) witnesses. Otherwise, there was no way he should have found and held, that the Appellant/Defendant, was the real or actual vendor and was in breach of the contract of sale of the said two(2) plots of land the subject -matter of the dispute.

There Was Exhs. 3 and 5 which actually shows/showed that the actual vendor and owner of the land is one Livinus B. Swanikuru of Kufai Ward, Jalingo, Taraba State. The Defendant/Appellant was merely a witness and signed the said exhibit as such. He was in fact, one of the witnesses to the sale transaction/Agreement.
The same facts and contents apply to Exh. 5. The Purchaser/Buyer in both exhibits, was/is G. N Nongah. In this exhibit, the Appellant and one Mrs Abisha Shama – PW 3 also signed as witnesses.

There is another fundamental error in the findings of the learned trial Judge. From the pleadings and the evidence before, him, there was no privity of contract between the respondent and the Appellant that would be binding on the Appellant.

It is now settled that only parties to an Agreement, can enforce it even if the contract was made for his benefit. See Kano State Oil and Allied Products Ltd V. Kofa Trading Co. Ltd (1996) 2 SCNJ. 325 @ 345; (1996) 3 NWLR (Pt.436) 244 @ 263 – per Adio, JSC citing the cases of Ikpeazu V. A.C.B. Ltd (1965) NMLR 374, 379 and Lagos State Development Corporation & Anor V. Nigerian Land and Sea Foods Ltd (1992) 5 NWLR (Pt. 244) 653 @ 669 – 670; (1992) 6 SCNJ. 243. See also Union Beverages Ltd V. Pepsi cola International Ltd & 3 Ors (1994) 3 NWLR (Pt.330 1 @ 16; (1994) 2 SCNJ. 157 W.D.N. Ltd V. Oyibo (1992) 5 NWLR (Pt.239) 77 @ 100 – 101 C. A. and of course, Alfortrin V. Att-Gen. of the Federation (1986) 12 SCNJ. 236 @ 254 – 255, 256.

There is another fundamental error with respect, on the part of the learned trial Judge.

It is his stance that because the Appellant who filed a Statement of Defence and abandoned it, left him with no other alternative, than to find in favour of the Respondent. There is no doubt and this is settled in a number of decided authorities, that unchallenged and uncontroverted evidence of a party, must be accepted on a minimal proof. See Oguma Associated Companies (Nig) Ltd V. IBWA Ltd (1988) 1 NWLR (Pt. 73) 658 @ 682; (1988) 3 SCNJ. 13 and Balogun V. U.B.A. Ltd (1992) 6 NWLR (Pt.247) 336 @ 354; (1992) 7 SCNJ. 61 just to mention but a few.

But it is also settled, that before the onus shifts to the defendant, the plaintiff must have made out a prima facie case showing that he is entitled to the relief(s) he seeks. See Aromire V. Awoyemi (1972) 2 S.C. 1; Kaiyaoja V. Egunla (1974) 12 S.C. 55 and Onwuama V. Ezeokoli (2002)5 NWLR (Pt.760) 353 @ 367. This is stated to be a pre-test that the burden is on a plaintiff to prove his case. It is when the defendant testifies or adduces evidence, that the case is decided on the balance of probabilities.

In other words, a plaintiff, must succeed on the strength of his own case and not on the weakness of the defendant’s case. If this onus, is not discharged (as in the instant case leading to this appeal) the weakness of the defendant’s case or his not giving evidence in support of his statement of defence which in the circumstances, is deemed abandoned by him, will not help him and the proper judgment, will be for the defendant. The rationale behind this principle is that the plaintiff, having sought the relief(s) from the court, has failed to establish his entitlement thereto, ought to have his claim rejected. See Cobblah V. Gbeke 12 WACA 294; Kodilenye V. Odu (1935) 2 WACA 336 @ 337; Frempong II V. Brempong (1952) 14 WACA 13 and Woluchem V. Gudi (1981) 5 S.C. 291 just to mention but a few. If his case is weak, it is settled that it does not matter that the defendant’s case is weak or that he makes no case at all. The plaintiffs case will fail. See Adeniran V. Alao & Anor (Infra).

It must be borne in mind and this is also settled, that the onus or burden of proof, does not shift to a defendant, until it has been proved by a plaintiff with reliable and credible evidence. See Oboru V. Rivers State Housing & Development Authority & Anor (1997) 9 NWLR (Pt. 521) 423 @ 445 C. A.; Agu V. Nnadi (2002)18 NWI.R (Pt. 798)103 @128; Chief Ibori V. Engr. Agbi & 5 Ors (2004) 6 NWLR (Pt.868) 78; and Adeniran V. Alao & Anor (2001) 12 SCNJ. 337 @ 355. and many others.

In the instant case, the Appellant’s learned counsel, in my respectful view, was perfectly right, indeed prudent and at alert to his responsibility, when at the close of the Respondent’s case, he rested the Respondent’s case on that of the Respondent and proceeded to address the court. The trial court, with respect, failed in its duty to properly evaluate the evidence of the Respondent and his two witnesses together with Exhs. 3 and 5 which were before him. Exhs. 3 and 5, knocked out, as it were, the bottom of the Respondent’s case. Also, the evidence of the Respondent as PW1 and that of his agent – the PW 3 in-chief and under cross-examination, made nonsense of the claims of the Respondent and the reliefs he sought from the court. I so hold. The Appellant was certainly, a stranger to Exhs. 3 and 5.

As for the Aggravated damages awarded in favour of the Respondent, there was no basis for the award. He never claimed any aggravated damages which must be specifically claimed. He claimed inter alia, general damages. The learned trial Judge, said it was aggravated general damages. A court, it has been stressed and it is settled, does not award to a party, what he did not claim.

It is from the foregoing and the more detailed reasoning and conclusion of my learned brother, Nzeako, JCA, resolving the two Issues of the Appellant in its favour and against the Respondent, that I too allow this appeal. I abide by the consequential orders in the lead Judgment including that in respect of costs.

Appearances

ELIJAH NYARO ESQ., For Appellant