BORNO v. DAMBAM

CITATION: (2016) LPELR-40802(CA)

In the Court of AppealIn the Jos Judicial Division

Holden at Jos

ON FRIDAY, 29TH APRIL, 2016Suit No: CA/J/201/2014

Before Their Lordships:

JOSEPH TINE TUR Justice, Court of AppealELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal

RIDWAN MAIWADA ABDULLAHI Justice, Court of Appeal

BetweenMOHAMMAD DAN BORNO - Appellant(s)

AndH.R.H. ALHAJI BAFFA DAMBAM(SARKIN DAMBAM) - Respondent(s)

RATIO DECIDENDI

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1. ACTION - PLEADINGS: Aim/object/purposeof pleadings"Pleadings constitute the notice each partyintends to canvass at the trial. See ObmiamiBricks and Stones Nig. Ltd. vs. ACB Ltd.(1992) 3 SCNJ 1 at 35; Uwegba vs. Attorney-General, Bendel State (1986) 1 NWLR (Pt.16)303 at 317. Pleadings are suggestions ofCounsel. They are not receivable against aparty in proof of the truth of the facts statedtherein unless verified on oath, signed oradopted by them. See Somisi vs. Sowemimo(1980) 2 FCA 153 at 160." Per TUR, J.C.A. (P.6, Paras. C-F) - read in context

2. ACTION - PLEADINGS: Effect of failure tocall evidence in support of pleadings"Averments in pleadings are deemedabandoned where no oral or documentaryevidence is adduced to prove them. SeeOjikutu vs. Fella 14 WACA 628; Balogun vs.Amubikanhuan (1985) 3 NWLR (Pt.11) 27and UniJos vs. Ikegwuoha (2013) 9 NWLR(Pt.1360) 478 at 497."Per TUR, J.C.A. (Pp.6-7, Paras. F-A) - read in context

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3. APPEAL - INTERFERENCE WITHCONCURRENT FINDING(S) OF FACT(S):Circumstances under which an appellatecourt will interfere with the concurrentfindings of two lower Courts"In Kimdey Per TUR, J.C.A. (Pp. 25-31, Paras.C-C) - read in context

4. COURT - DUTY OF COURT: Duty of a trialCourt to evaluate evidence and makefindings of facts therefrom"The duty of a trial Court is to make findingsof fact on important issues raised in thepleadings, oral and documentary evidence.See Owoade vs. Omitola (1988) 5 SCNJ 1 at14; Okpiri vs. Jonah (1961) 1 All NLR 102and Okoye vs. Kpajie (1973) NMLR 84."PerTUR, J.C.A. (P. 16, Paras. B-C) - read incontext

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5. EVIDENCE - CROSS-EXAMINATION:Purpose of cross-examination"The credit of a witness is to be impeachedduring his testimony in the witness box. See1984) 1 SCNLR 1 at 88; Akinbiyi vs. Anike(1959) W.R.N.L.R. 16; Nwankwere vs.Adewunmi (1962) W.R.N.L.R. 298 at 302;Amadi vs. Nwosu (1992) 6 SCNJ 59 at 71 andAjao vs. Ajao (1986) 5 NWLR (Pt.45) 802;Obembe vs. Wemabod Estate Ltd. (1977) 5SC 115 at 139 and Odulaya vs. haddad(1973) 11 SC 357. It is improper for awitness testifying in the box not to be cross-examined on a material issue but for adefendant to wait to call rebuttal evidenceafter the plaintiff or his witness hadconcluded their testimony.See Agbonifo vs. Aiwereoba & Anor. (1988)2 SCNJ (Pt.1) 146 at 161; Babalola & Anor.vs. State (1989) 7 SCNJ 127 at 138-139;Nkwa vs. C.O.P. (1977) N.N.L.R. 98 at 103and Okosi vs. The State (1989) 2 SCNJ 183."Per TUR, J.C.A. (Pp. 15-16, Paras. C-A) - readin context

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6. EVIDENCE - EVIDENCE OF TRADITIONALRULERS: Significance of evidence oftraditional rulers"The Courts have accepted that generallythe evidence of traditional rulers or elders inthe Community or society on a materialpoint in controversy may, depending oneach circumstance, be accorded weightunless proved otherwise. See Udo vs.Melifonwu (1961) 5 EWLR 93 at 96; Oyakojavs. Ibadan District Council (1959) WRNLR304 at 306 and Halsbur's Laws of England,3rd edition, paragraph 319 and 320 page171. In Nwawuba Per TUR, J.C.A. (Pp. 16-19,Paras. D-B) - read in context

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7. INTERPRETATION OF STATUTE -SECTIONS 294(2)-(4) AND 318(1) OFT H E 1 9 9 9 C O N S T I T U T I O N ( A SAMENDED): Interpretation of Section294(2)- (4) and 318(1) of the 1999Constitution (as amended) as regards howevery determination by a Justice of theSupreme Court or the Court of Appeal is tobe headed"Every determination by a Justice of theSupreme Court or the Court of Appeal is,according to Section 294(2)-(4) readtogether with Section 318(1) of theConstitution of the Federal Republic ofNigeria, 1999 as amended, to be headed an"opinion" or a "decision". The Constitutionbeing supreme, its provisions have bindingforce on all authorities and persons,including appel late Court Just icesthroughout the Federal Republic of Nigeria.See Section 1(1) of the Constitution (supra).In Davies vs. Powell (1737), Willes, 46,Willes, C.J. held at page 51 that: "When thenature of things changes, the rules of lawmust change too." In Jurisprudence, 4thedition, page 197 by Diaz, the learnedauthor concurred as follows: "This is a truismin that the legislature and within limits, theCourts should change rules to keep the lawabreast of change."Per TUR, J.C.A. (P. 1,Paras. A-E) - read in context

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DECISIONJOSEPH TINE TUR, J.C.A. (Delivering the LeadingJudgment): Every determination by a Justice of theSupreme Court or the Court of Appeal is, according toSection 294(2)-(4) read together with Section 318(1) of theConstitution of the Federal Republic of Nigeria, 1999 asamended, to be headed an “opinion” or a “decision”. TheConstitution being supreme, its provisions have bindingforce on all authorities and persons, including appellateCourt Justices throughout the Federal Republic of Nigeria.See Section 1(1) of the Constitution (supra). In Davies vs.Powell (1737), Willes, 46, Willes, C.J. held at page 51that: “When the nature of things changes, the rules oflaw must change too.” In Jurisprudence, 4th edition,page 197 by Diaz, the learned author concurred as follows:“This is a truism in that the legislature and withinlimits, the Courts should change rules to keep the lawabreast of change.”

For the above reasons I have tagged or headed thisdetermination a “decision” to be in conformity with theconstitutional requirements.

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Mohammad Dan Borno, the appellant was the defendant

and H.R.H. Alhaji Baffa Dambam the respondent was the

plaintiff in the High Court of Justice, Borno State holden at

Maiduguri. The Writ of Summons was initiated by the

respondent against the appellant in the Court below on 9th

January, 2013 accompanied with a statement of claim. In

the course of trial, the original statement of claim was with

leave of the Court amended.

The appellant filed a Statement of Defence on 30th January,

2013. With leave of the Court the Statement of Defence

was also amended. The respondent filed a reply to the

Amended Statement of Defence. The matter proceeded to

trial. The parties relied on oral and documentary exhibits in

support of their respective pleadings. At the close of the

case learned Counsel submitted written addresses. The

learned trial Judge A.Z. Mussa, J., rendered his decision

on 27th February, 2014 and granted the reliefs claimed

against the appellant.

Aggrieved by the decision the appellant filed a Notice of

Appeal with four grounds of appeal. The appellant filed a

brief of argument on 3rd September, 2015. The appellant

distilled the following issues

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for determination:

“Whether having regards to the evidence adduced by

the parties in this case more particularly that of the

respondent, the trial Judge was right to have granted

the reliefs sought by the respondent. (This issue is

distilled from grounds 1, 2, 3 and 4 of the Notice of

Appeal).”

The respondent filed a brief on 9th November, 2015. The

lone issue formulated for determination by the appellant

was adopted by the respondent. The parties should assume

that I have read all the briefs and considered the

arguments and authorities before arriving at this decision.

See Order 18 Rule 3(3) of the Court of Appeal Rules, 2011.

The principal argument in the appellant’s brief is that the

respondent did not adduce evidence to establish his claims

in the Lower Court and was not entitled to judgment, citing

Mozie vs. Mba (2006) 27 NSCQR 425 at 431. Learned

Counsel took this Court through the oral and documentary

evidence, citing Chief Ayogu Eze vs. Brigadier General

J.O.Z. Okoloagu & Ors. (2009) LPELR-3922 and

Dawodu vs. Isikalu (2011) LPELR-4488 to show that the

authenticity of Exhibit “D” was a live issue.

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Esenowo vs. Ukpong (1999) 6 NWLR (Pt.608) 611 at

617; Union Bank of Nigeria Plc vs. Charles Olusola

Toyinbo (2008) LPELR-5056 at 50-51 paragraphs “G”-

“D” were referred to as showing that the appellant did not

sign Exhibit “D” hence it had no probative value, citing

Seidu vs. Attorney-General of Lagos State (1986) 2

NWLR (Pt.21) 165; Attorney-General, Abia State &

Ors. vs. Agharanya & Ors. (1999) 6 NWLR (Pt.607)

362 at 371 and Anaeze vs. Anyaso (1993) 5 SCNJ 151

at 168-169. Learned Counsel’s further contention is that

the fact that an unsigned document was admitted in

evidence without objection was immaterial as no weight

could be attached to such a document, citing Musa

Abubakar vs. E.I. Chuks (2007) LPELR- 52 (SC) and

Afemai Microfinance Bank Ltd. vs. Seacos Nigeria

Ltd. (2014) LPELR 22583 (CA).

Learned Counsel urged this Court to resolve the lone issue

in favour of the appellant, allow the appeal and set aside

the decision of the learned trial Judge.

The contention in the respondent’s brief is that from all

available records there was a business agreement

governing the relationship between the

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parties which the appellant had breached. Reference was

made to the custom applicable to the trade in Tokumboh

Motors, citing Sections 16 and 19 of the Evidence Act,

2011; Ogbuli vs. Ogbuli (2012) 19 WLR 143 at 149

and Moh’d Hussain vs. Moh’d N. Moh’d (2015) NWLR

(Pt.1445) 100 at 107. The learned Counsel argued that

the appellant being an immigration officer knew the in and

out of the business of trading in Tokumbo vehicles for a

profit. Admitted facts need no further proof, citing Asewe

Akpagher vs. Pius Gbangu & Ors. (2015) NWLR

(Pt.1440) 209 at 214 and Oguanuhu vs. Chiegboka

(2013) 6 NWLR (Pt.1351) 558 and Cross River State

vs. Young (2013) 11 NWLR (Pt.1364) 1; Alhaji Sani

Abubakar Danladi vs. Barr. Nasir Audu Dangiri & Ors.

(2015) 2 NWLR (Pt.1442) 124 at 124.

Learned Counsel drew attention to Alechenu vs. UniJos

(2015) 1 NWLR (Pt.1446) 333 at 340 as authority that

the learned trial Judge was right to have relied on Exhibit

“D” to found in favour of the respondent: Omorhirhi vs.

Enaterwere (1988) 1 NWLR (Pt.73) 746; NBA vs. A.R.

Maduablu, Esq. (2015) 15 NWLR (Pt.1481) 148 at 149

and Ngige vs. INEC (2015) 1 NWLR

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(Pt.1440) 281 at 294.

Learned Counsel again submitted that the respondent had

discharged the burden of proof and was entitled to

judgment as the learned trial Judge had properly evaluated

the evidence before arriving at the decision, citing Anyaka

vs. Anyaka (2015) 14 WRN 40; Doma vs. Agiri (1998)

3 NWLR (Pt.541) 246 at 268; Waju vs. The Governor

of Oyo State & Ors. (1992) 9 NWLR (Pt.265) 335 and

Hassan vs. State (2015) WRN 56 at 70. Learned

Counsel urged that the lone issue should be resolved

against the appellant and the appeal be dismissed.

The parties contested the suit on pleadings, oral and

documentary evidence. Pleadings constitute the notice each

party intends to canvass at the trial. See Obimiami Bricks

and Stones Nig. Ltd. vs. ACB Ltd. (1992) 3 SCNJ 1 at

35; Uwegba vs. Attorney-General, Bendel State (1986)

1 NWLR (Pt.16) 303 at 317. Pleadings are suggestions of

Counsel. They are not receivable against a party in proof of

the truth of the facts stated therein unless verified on oath,

signed or adopted by them. See Somisi vs. Sowemimo

(1980) 2 FCA 153 at 160.

Averments in pleadings are deemed abandoned where no

oral or documentary

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evidence is adduced to prove them. See Ojikutu vs. Fella

14 WACA 628; Balogun vs. Amubikanhuan (1985) 3

NWLR (Pt.11) 27 and UniJos vs. Ikegwuoha (2013) 9

NWLR (Pt.1360) 478 at 497.

Evidence to support pleaded facts may be oral or

documentary depending on the facts and circumstances of

each case. The relationship between the respondent and

the appellant is set out in their respective pleadings.

Paragraphs 3-7 of the respondent’s Amended Statement of

Claim pleaded the following facts:

“3. That the plaintiff pleads that he instructed the

defendant to use the capital of plaintiff with him to

buy cows, sheep and animals feeds as suggested by

the defendant (worth) Seven Million Naira

(N7,000,000.00) in the year 2009. That failure to

account for the money or its worth made the plaintiff

to demand for the refund of the money which the

defendant failed to do after repeated demands. The

plaintiff reported the matter to the police where the

defendant admitted owing Three Million, Seven

Hundred Thousand Naira (N3,700,000) and promised

to refund the money on 10th January, 2012 through

an undertaking/agreement wrote in presence of Auwal

Kadir Dambam.

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The copy of letter of admittance is attached and

marked as Exhibit “A” and will be relied upon at the

trial of this suit. And the witness deposition on oath

by one Auwal Kadir Dambam is annexed and marked

as Exhibit “C3”. Therefore, the plaintiff briefed A.

Abba Aji, Esq. Counsel in the law Firm of A. Abba Aji

& Co. The said Counsel wrote demand letters twice

but still the defendant refused to comply hence this

suit.

4. That the demand letters from A. Abba Aji & Co.

hereby annexed and marked as Exhibit “B” and “B1”.

5. That plaintiff witnesses depositions on oath of BM

Dambam and Umar Datti are hereby annexed and

marked as Exhibit “C1” and “C2”.

6. That the plaintiff further pleads that he suffered

generally as a result of non-remittance and

accounting of his money by the defendant from 2009

to date.

7. WHEREOF the plaintiff claims as follows:

(a) An order that the plaintiff is entitled to the sum of

Three Million Seven Hundred Thousand Naira

(N3,700,000.00) being money owed and admitted by

the defendant.

(b) An order of Court that the plaintiff is

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entitled to 10% interest on accrued money from 2009

to date.

(c) The cost of this suit.”

Paragraphs 2-20 of the appellant’s Amended Statement of

Defence is a bare face denial of the facts pleaded by the

respondent. They are as follows:

“1. The defendant admits paragraphs 1 and 2 of the

claimant’s statement of claim.

2. The defendant denies paragraphs 3 of the claimant

statement of claim and put the claimant to the

strictest proof thereon.

3. In further denial of paragraphs 3 and 4 the

claimant never gave the defendant 43 cattle, sheep

not animals feed worth of N7,000,000.00 in the year

2009. Also the claimant never invited the defendant

to account what transpired between them and did not

write any agreement with the claimant nor anybody

else to pay the sum of N3,700,000.00. Moreover, the

defendant reply only to the letter of demand to

account what actually transpired between them.

4. The defendant further deny paragraph 5 and put

the claimant on strictest proof thereon.

5. In further denial of paragraph 5 above, the

defendant never fixed date for remittance and or

accounting of the said sum.

6.

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The defendant further states that sometimes in 2006,

the claimant as a custom officer invited him start a

Tokumbo Cars business with the defendant, from

Nigeria to Benin Republic to bring vehicle together.

They have been into the business for a short period of

time with the promise to share the profit. The

defendant used to send money via the claimant bank

account with First Bank Plc where the defendant

depos i ted n ine hundred thousand Naira

(N900,000.00) only and three hundred thousand

N3,000,000.00) Naira only via same account.

7. The defendant later informed the claimant that he

was having problem with custom officers because

they knew the relationship between them, they

arrested and detained him in several occasions.

8. That defendant and claimant both agreed to

convert the business into farming and selling of

cattle, before then the claimant provide the defendant

with two vehicles to Ajilete town, at Idekims Hotel

and the defendant made an instant cash payment of

N1,700,000.00 to the claimant for the two vehicles,

the defendant along with one customs officer by name

Auwal Godawalle drove away the two vehicles.

Moreso, there is a van (J5 Bus)

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belonging to the claimant parked at Kano Motor

Park, Maiduguri.

9. The defendant started the business and a for start,

he loaded a trailer full of cattle to Awka, Anambra

State where defendant sold the cattle according to

the market tradition bit by bit and later sent the

money to the claimant via his First Bank Dambam B.

M’s account No.2502010033700 deposited by one Mr.

Aliyu two times.

10. The defendant further stated that he bought

animal feed for the sum of N1,700,000.00 and kept

same in Banki Town as instructed by the claimant.

11. The defendant also bought 27 cattle at the sum of

N1,482,000.00 for fattening together with 10

Sudanese sheep in the sum of N25,000.00 each all to

the claimant.

12. The claimant also instructed the defendant to

take responsibility of medical treatment of one Modu

Kawu Modu who was suffering from pyderma

gangresosum and he was admitted in the University

of Maiduguri Teaching Hospital (UMTH) on the July

6th 2006 and discharged on the 7th day of July, 2009

spending the total sum of N570,000.00 with folder

No.189761, medical report is hereby annexed and

marked as Exhibit “A”.

13. The

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defendant further stated that the claimant instructed

him to pay a house rent of one old man for the period

of eight months in the sum of N8,000.00 which he

did.

14. The defendant stated that the claimant has

sometimes collected the sum of N20,000.00 to his

family.

15. The claimant instructed me to give the sum of

N200,000.00 to Umar Datti and he also instructed me

to give the sum of N50,000.00 to one custom officer

call Allaraini.

16. The defendant stated that he bought a house to

the claimant here in Maiduguri at the cost of

N670,000.00 in the year 2006 during the business the

defendant spend the total of N65,000.00 to the

District Head and furnishing the house, the

agreement of purchase of the house is hereby

annexed and marked as Exhibit “B”.

17. The defendant states all that transpired between

them, have been in record but unfortunately to the

defendant his house was burnt in the 303 Housing

Estate, Maiduguri as a result he lost the transaction

record book. The police and fire service report is

hereby annexed and marked as Exhibit “C”.

18. The defendant states the claimant is not entitled

to the claims as

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endorsed or any other claim whatsoever against the

defendant.

19. The defendant shall found and reply on all

document correspondences petition, etc. Whether

specifically pleaded or not but are relevant or

incidental to the just determination of this case as

same is hereby pleaded.

20. Whereof the defendant shall at the trial urge the

Court to dismiss the claim into with substantial cost

and declare same as baseless, frivolous without

merit.”

Auwal Kadir Dambam’s name featured prominently in

paragraph 3 of the Amended Statement of Claim in whose

presence the appellant wrote the undertaking to refund to

the respondent the sum of N3.7 Million on 10th January,

2012. Auwal Kadir (PW3) adopted his sworn deposition on

15th May, 2013 and was cross-examined by the learned

Counsel to the appellant. PW3 answered at page 61 lines

20 to page 62 lines 1-6 of the printed record as follows:

“PW3: Auwal Kadir, live in Dambam, Bauchi State. I

am a cattle dealer. On 9th November and 10th

November, 2011 do you remember what happened

between the plaintiff and defendant, yes. And 26th

April, 2013 you made statement on oath, yes. We are

now

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applying to adopt the written statement on oath by

Auwal Kadir filed on 26th April, 2013.

Court – Statement made on oath by Auwal Kadir filed

on 26th April, 2013 hereby admitted as evidence

given before this Court.

CROSS-EXAMINATION:

I am Auwal Kadir. I am not their business partner, I

do not know when the plaintiff and the defendant

started their business. I don’t know whether it is

written or oral, I don’t know whether the business

was started in cash or kinds. I escorted H.R.H. Baffa

to Banki Town; not only I escorted him but I know

what was happening. H.R.H. informed of what is

happening, I did not see the cattle. So in nutshell I

was informed every thing about this transaction by

the plaintiff.

RE-EXAMINATION:

Why did you accompany the plaintiff to Banki.

Objection: I didn’t asked that question.

Court – Objection sustained.

Plaintiff Counsel – So we closed our case. Counsel

agreed on date i.e. 30th May, 2013 for defence.

May 20, 2013 for defence.”

It can be seen that the learned Counsel representing the

appellant never cross-examined PW3 concerning the

signing

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of Exhibit “D” as pleaded in paragraph 3 of the Amended

Statement of Claim.

The respondent (PW2) is a traditional ruler. He adopted his

sworn deposition on 11th March, 2013 and was cross-

examined. A cursory examination of the records of appeal

will show that at no time did the learned Counsel

representing the appellant impeach or discredit the

evidence of PW3 regarding the authorship of Exhibit “D”.

Not a single question was asked by the learned Counsel in

that regard. The evidence in that regard remained

unchallenged.

The credit of a witness is to be impeached during his

testimony in the witness box. See Onwobodo vs. Onoh

(1984) 1 SCNLR 1 at 88; Akinbiyi vs. Anike (1959)

W.R.N.L.R. 16; Nwankwere vs. Adewunmi (1962)

W.R.N.L.R. 298 at 302; Amadi vs. Nwosu (1992) 6

SCNJ 59 at 71 and Ajao vs. Alao (1986) 5 NWLR

(Pt.45) 802; Obembe vs. Wemabod Estate Ltd. (1977)

5 SC 115 at 139 and Odulaja vs. haddad (1973) 11 SC

357. It is improper for a witness testifying in the box not to

be cross-examined on a material issue but for a defendant

to wait to call rebuttal evidence after the plaintiff or his

witness had concluded their testimony.

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See Agbonifo vs. Aiwereoba & Anor. (1988) 2 SCNJ

(Pt.1) 146 at 161; Babalola & Anor. vs. State (1989) 7

SCNJ 127 at 138-139; Nkwa vs. C.O.P. (1977) N.N.L.R.

98 at 103 and Okosi vs. The State (1989) 2 SCNJ 183.

The duty of a trial Court is to make findings of fact on

important issues raised in the pleadings, oral and

documentary evidence. See Owoade vs. Omitola (1988) 5

SCNJ 1 at 14; Okpiri vs. Jonah (1961) 1 All NLR 102

and Okoye vs. Kpajie (1973) NMLR 84.

Paragraphs 3-7 of the Amended Statement of Claim

pleaded that the respondent is “H.R.H.” meaning “His

Royal Highness” the “Sarkin Dambam, Bauchi State.”

PW3 is a traditional ruler. The Courts have accepted that

generally the evidence of traditional rulers or elders in the

Community or society on a material point in controversy

may, depending on each circumstance, be accorded weight

unless proved otherwise. See Udo vs. Melifonwu (1961)

5 EWLR 93 at 96; Oyakoja vs. Ibadan District Council

(1959) WRNLR 304 at 306 and Halsbur’s Laws of

England, 3rd edition, paragraph 319 and 320 page

171.

In Nwawuba & Ors. vs. Enemuo & Ors. (1988) 19

NSCC

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(Pt.1) 930, Chief Nweke, the Chief of Urum, a traditional

ruler and a one time Court member before the dispute

arose admitted that the land in dispute belonged to Okibe,

the head of the respondent’s family. The Supreme Court

held at page 939 lines 18 to 25 per Nnaemeka-Agu, JSC

thus:

“…an admission by the Chief of Urum as to the

ownership of Okpokolo land long belong before this

litigation began is a material and relevant fact which

could be proved against subsequent generations of

Urum people, of which the appellants form a part.

Considering as I must, the circumstances in which

the admission was made (for which see Seismograph

Service (Nig.) Ltd. vs. Eyuafe (1976) 9, 10 SC 135), I

cannot but come to the conclusion that it is a very

strong piece of evidence against the 2nd set of

appellants as to the ownership of that part of Akpuo

land verged green in Exhibit “A”.

page 939 lines 43 to page 940 lines 1-9 his Lordship

concluded as follows:

“In addition to the above, I cannot ignore the fact

that the respondents called nine witnesses who were

obviously believed in view of the various findings of

fact I

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have referred to, and which have not been faulted in

this appeal. On the above state of the facts, there can

be no doubt that respondents proved their case. But I

should not fail to mention certain aspects of the case

for the appellants which further strengthen the

respondents’ case. I have set out the view of the

learned trial Judge on the evidence of the appellants’

star witness, DW2, the recognized traditional ruler of

Urum who testified that the land in dispute was

property of the respondents and Umuokpaleke sub-

family of Akanabo Urum. Umuokpaleke did not

however advance any claim to the land on their own.

Nor did any pleading on behalf of the appellants

support such a case. In the final analysis it is

therefore, the admission that the land belongs to the

respondents that becomes relevant and significant. It

is a matter of common knowledge that old men and

traditional rulers are by their positions not only in a

position to know the true facts in land dispute but

also often find it difficult to twist the truth. The

important admission by the recognized traditional

ruler of Urum in this regard has a ring of truth. It

appears to me to be more than

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a mere coincidence that in 1945, Chief Okafor Nweke,

the then Chief of Urum, in the Native Court, suit

No.20 of 1945, admitted, in the solemn atmosphere of

the Court, that the part of Akpuovu land called

Okpokolo by the appellants belonged to the

respondents predecessor-in-title; and now his son,

again the Recognized Traditional Ruler of Urum,

made an admission to the like effect.”

The appellant swore to a deposition on 15th January, 2013

which is as follows:

“I Muhammed Dan Borno, Adult, Male, Muslim and a

Nigerian citizen of residence in 303 Housing Estate,

Maiduguri do hereby make oath and state as follows:

1. That I am the defendant in this suit by virtue of my

position I am conversant with the fact of this case.

2. That sometimes in 2006 we started a Tokumbo

business with the claimant we use to go to Benin

Republic together and bring vehicles for sale, are

doing in peacefully for short period of time with the

promise of sharing profit proportionally together for

the first time we sent the sum of N900,000.00 (Nine

Hundred Thousand Naira) though his account with

First Bank and also N300,000.00 (Three hundred

thousand

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Naira).

3. That I informed the claimant that I was facing

much problems with custom officers because they

know my relationship with the claimant and

defendant they arrested and detained me several

occasions.

4. That myself and the claimant agreed to convert the

business into fattening and selling of cattle, then the

claimant provides two vehicles in lieu of which I paid

him the sum of N1,700,000.00 moreso, I packed a van

(J5 Bus) belonging to the claimant at Kano Motor

Park, Maiduguri.

5. That claimant instructed me to give the sum of

N200,000.00 to Umar Datti he also instructed to give

N50,000.00 to custom Officer called Allaraini.

6. That I started fattening and loaded one trailer of

cattle to Awka, Anambra State, after sale, I sent

money through the claimant account with First Bank

– Dambam B.M.’s Account No.2502010033700

deposited by one Mr. Aliyu two times.

7. That I further bought animal feed for the sum of

N1,700,000.00 and kept same in Banki Town as

instructed by the claimant.

8 . Tha t I bought 27 ca t t l e a t the sum o f

N1,482,000.00 for fattening together with 10

Sudanese sheep in the sum of N25,000.00 each

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all to the claimant.

9. The claimant instructed me to treat Modu Kawu

who was admitted in the University of Maiduguri

Teaching Hospital (UMTH) on the July 6th, 2006 and

discharged 2009 after spending the sum of

N570,000.00 only.

10. That the claimant instructed me to pay a house

rent of an old man at Hausari Ward, Maiduguri for

eight months in the sum of N8,000.00 cash, the

claimant also instructed me to give the sum of

N20,000.00 cash to his family.

11. That I bought a house on behalf of the claimant in

Maiduguri at the sum of N67,000.00 and gave the

sum of N30,000.00 to District Head as witness, the

defendant also furnished the house with the sum of

N35,000.00

12. That all the transaction between us had being in

my entry book for record purpose but my house at

303 Housing Estate, Maiduguri was burnt as a result

of fire incident that is why I lost my entry book.

13. That I urge the Court to dismiss the claimant

claim with substantial cost and declare same as

baseless, frivolous and without merit.

14. That I swear to this affidavit in good faith and in

accordance with Oath Act.”

The appellant adopted the sworn

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deposition on 30th May, 2013 and was cross-examined by

the learned Counsel to the respondent. The appellant was

confronted with the agreement of 10th November, 2011 but

simply answered, “…I don’t know anything about” (See

page 73 lines 20 of the printed record). The deposition of

the appellant is at variance with the facts pleaded in the

Statement of Defence and is in conflict with the Amended

Statement of Claim.

The evidence by PW3 that it was the appellant who wrote

Exhibit “D” was never impugned or impeached in the

Lower Court under cross-examination. Exhibit “D” reads as

follows:

“University of Maiduguri Teaching Hospital (UMTH)

P.M.B. 1414

Maiduguri,

10th November, 2011

AGREEMENT BETWEEN:

MOH’D DAN BORNO AND BAFFA DAMBAM

I Moh’d Dan Borno Jaran made an agreement to

refund the sum of N3.7 Million Naira on 10th

January, 2012. In Sha Allah at the present of Auwal

Kadir Dambam.

SGD.

Giver’s Name: Dan Borno

Address: UMTH,

SGD.

Date: 10/11/2011.”

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The learned trial Judge made findings regarding Exhibit

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“D” at page 99 lines 9 to page 100 lines 1-27 of the printed

record as follows:

“There is no doubt that there is a contract of trust

between the claimant and the defendant and the

Court have observed in the case of A-G. Rivers State

vs. A-G. Akwa Ibom State (2011) 8 NWLR (Pt.1248)

page 31 at page 48 that “where parties have entered

into a contract or agreement voluntarily and there is

nothing to show that same was obtained by fraud,

mistake, deceit or misrepresentation, they are bound

by the provisions or terms of the contract of

agreement.”

At a close examination of Exhibit “D” shows that the

defendant agreed to return the sum of N3.7 Million

on 10th January, 2012, to Baffa Dambam the claimant

herein.

The general rule of the law is that where parties have

embodied the terms of their agreement or contract in

a written document, no extrinsic evidence to add to

alter, subtract from very or contradict the terms

freely agreed to by them would be permitted. Their

rights and obligations under the said contract would

be determined by such terms specially set out in the

agreement itself and not evidence outside

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it. See UBN vs. Ozigi (1994) 3 NWLR (Pt.333) 385;

Koiki vs. Magnusson (1999) 8 NWLR (Pt.615) 492;

Ojoh vs. Kamalu (2006) All FWLR (Pt.297) 988.

It is also a settled law that a party cannot be heard to

deny any obligation under the contract which they

freely made. The terms and condition of the written

contract and/or agreement and indeed all its contents

cannot be contradicted, altered, added to or varied by

oral or other evidence outside and extraneous to it.

See the case of Elder Eseme Akpan vs. Ekanabasi

Asibong Ubong (2013) LPELR-20418 (CA).

Considering the above authorities and relying on

Exhibit “D” I have no doubt in my mind that the

defendant voluntarily and freely written said

agreement to refund the sum of N3,700,000.00 to the

plaintiff and he must be liable.

Regard to interest accrued the claimant has not led

evidence to show that the business was in progress

from the date the defendant agreed to refund the sum

of N3.7 Million to date. In view of this I declined to

award any interest accrued to the plaintiff.

In view of the forgoing I therefore, hereby entered

judgment for the claimant, and ordered as follows:

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(a) That the claimant is entitled to the sum of Three

Million Seven Hundred Thousand Naira only (N3.7m)

and same shall be refunded to the claimant.

(b) That the claimant is not entitled to any interest

accrued.

(c) N50,000.00 cost of this suit.”

I have read the records. Even without Exhibit “D” there is

ample evidence to support the findings of the learned trial

Judge.

In Kimdey & Ors. sv. Military Governor of Gongola

State & Ors. (1988) 19 NSCC (Pt.1) 827 Karibi-Whyte,

JSC held at page 838 lines 25-50 as follows:

“This Court has been invited to reverse the findings of

fact of the two Courts below that the right to the

Longuda Chieftaincy between the Bonsibe and the

Bonkumbebe is not rotational. There is the well

settled presumption of the correctness of the findings

of fact of Courts below, and the presumption must be

displaced to reverse the finding of fact – See Williams

vs. Johnson (1937) 2 WACA 253. It is also well settled

that this Court will not lightly interfere with

concurrent findings of fact of the Courts below. In

Ogundipe vs. Awe & Ors. (1988) 1 NWLR 118 at page

125 this Court

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affirmed its often repeating proposition that it will

not interfere where there have been concurrent

findings of facts by the Courts below unless such

findings are shown to be perverse or not the result of

a proper exercise of discretion. (See Obaseki, JSC at

page 125, Wali, JSC at page 127).

It is not the primary function of this or any appellate

Court to make findings of facts or to appraise

evidence. Also where the finding of fact is based

entirely on the credibility of the witness, this Court

will be reluctant to interfere. See Kponuglo vs. Kodaja

(1932) 2 WACA 24. The duty to make primary findings

of fact by the evaluation of the evidence before him by

the additional advantage of watching the demeanour

of witnesses is essentially preserved for the trial

Court – See Egir vs. Uperi (1974) 1 NMLR 22.

However, where the issue relates to the proper

inference to be drawn from the facts proved, the

Court of Appeal, including this Court, is in as good a

position as the Court of trial, and will draw the proper

inference naturally following from the facts so proved

– See Akesse vs. Akpabio (1935) 2 WACA 264.

The Court of Appeal will reverse

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the findings of fact if in its opinion, it is not

supported by the evidence – See Lengbe vs. Imale

(1959) WRNLR 325. This Court will however not

reverse the finding of fact of the Court below merely

because it would have found differently. See

Ogundulu vs. Philips & Ors. (1973) NMLR 267.”

Nnaemeka-Agu, JSC held at page 851 lines 7 to page 852

lines 1 to 13 of the judgment as follows:

“No doubt, the legal proposition that where there is

oral as well as documentary evidence, documentary

evidence should be used as a hanger from which to

assess oral testimony is a sound one. In Fashanu vs.

Adekoya (supra), Coker, JSC put the principle very

succinctly where he held at pages 91-92:

“Undoubtedly, the duty of the Court in ascertaining –

the truth in those circumstances is all but easy and

the best of logic may be as availing to one of the

parties as it is to the other. But there was produced

by both parties a large body of documentary evidence

containing a number of letters and other documents

and, as argued by learned Counsel for the plaintiff, it

is the duty of the learned trial Judge in a case like the

present to

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test the probability of the case of either of the parties

by reference to relevant documents which represent

evidence of some more or less permanent or perhaps

unassailable character.”

The decisive point in this appeal is, however, that

apart from Exhibits “1” and “2” which appear to

favour appellants’ case, there are Exhibits “3” and “4”

in his decision and it has not been suggested that he

did not advert to Exhibits “1” and “2”. Besides there

is Exhibit “5”, captioned “The Appointment and

Deposition of Chiefs (Appointment of Chief Longuda)

Order 1968” stated to have commenced on the 26th of

March, 1968. It bears the common seal of Numan

Federation Native Authority and appears to have been

signed by the Secretary. It was tendered in evidence

as “the Order relating to the Chief of Longuda” and

admitted without objection. As it bears the seal of the

Authority, it concludes this case against the

appellants in that it shows the new practice of

selection of the Chief. Neither in this Court nor in the

Court of Appeal has its authenticity been

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impeached in any ground of appeal, quite apart from

the fact that it was admitted in the Court of trial

without objection. The learned Counsel for the

appellants only tried to attack it in his oral

submissions before us. In my judgment that will not

do. Though it was not used in the Court below I am

entitled to draw any legitimate inference from it, as it

was admitted without objection and has not been

faulted (Akpapuna vs. Nzeka (1983) 1 SCNLR 1). But

by far the greatest injury to the appellants’ case was

in the oral testimony of PW1, Wilfred Kimde, the 11th

plaintiff/appellant himself. Under cross-examination

by the learned Counsel for the respondents, he

himself showed conclusively that the history of the

previous successions to the Chieftaincy stool did not

support the strict alternation between the two clans

which the appellants are insisting upon. He admitted

that Dukel of Bonsibe was followed by Potu, also of

Bonkumbebe. Similarly Githir of Bonkumbebe was

followed by Delo of the same clan. At a certain time

Suleiman, Gogo, and Yoila of Bonsibe followed one

after another. So the history admitted by the

appellants does not support their case in this

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appeal.

So, whereas Exhibits “1” and “2” tend to support the

appellants’ case, Exhibits “3”, “4” and “5” as well as a

substantial body of the oral testimony tendered

supported the respondents’ case, which was preferred

by the learned Chief Judge and confirmed by the

Court of Appeal. In short, in a case like this where the

documentary evidence before the Court goes both

ways and one side has a more substantial support of

the oral testimony before the trial Court, that set of

documentary evidence which has more substantial

support of the oral testimony outweighs the other. If,

as is the case here, the trial Court prefers that set of

documentary evidence, the appellate Court should not

interfere. In need not repeat that there is a

presumption that a trial Judge’s decision on facts is

correct, findings on primary facts being essentially

within the province of the Court of trial. For one to

appeal successfully on facts, he must affirmatively

displace that presumption: See Bakare Folorunso vs.

I.A. Adeyemi (1975) 1 NMLR 128; Williams vs.

Johnson (1937) 2 WACA 253. The appellants have

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woefully failed to displace that presumption in this

case. Rather the learned Counsel on their behalf

wants us to embark anew on the task of re-evaluating

the same evidence which the two Lower Courts have

already evaluated and come to their conclusions

thereon. This is exactly what we ought not to do, even

if we may arrive at different conclusion thereon. This

is exactly what we ought not to do, even if we may

arrive at different conclusions on them: See Asani

Balogun & Ors. vs. Alimi Agboola (1974) 1 All NLR

(Pt.2) 66.”

I uphold the findings and conclusions of the learned trial

Judge (as he then was) and dismiss this appeal as lacking in

merit. I assess N50,000.00 cost to the respondent.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU,J.C.A.: I have had the privilege and opportunity to read thedraft of the lead judgment delivered by my learned brother,JOSEPH TINE TUR, JCA.

I am in total agreement with the reasoning and conclusionsof his Lordship therein.

Consequently, I hereby dismiss the appeal and abide by theorders made therein.

RIDWAN MAIWADA ABDULLAHI, J.C.A.:

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I have had the privilege of reading in advance the decision

prepared by my learned brother, JOSEPH TINE TUR, JCA

just delivered. I agreed with his reasoning and conclusions

arrived at after due consideration of all the issues raised

for determination in the appeal.

The appeal has no merit and should be dismissed and I also

endorsed the order made as to costs.

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Appearances:

E.O. Akhayere, Esq. with him, N.K. Dariyem, Esq.and M.O. Alu, Esq. For Appellant(s)

-- For Respondent(s)

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