Incompetent Statement of Defence: Effect of Defence Witness’ Evidence
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TFacts
he Respondent was a Trade Partner with the Appellant. In 2011, the Appellant issued fresh terms of agreement, wherein it was specifically stated that the 2011 agreement supersedes previous agreements between parties. The Appellant purportedly terminated the agreement, vide a letter dated 18th March, 2011. The Respondent contended that the said termination was not in compliance with the terms of the agreement, and that the letter was addressed to a different company – Corporate Communication Ltd. Despite the letter from the Respondent’s solicitor challenging the action of the Appellant and requesting for an amicable resolution of the matter, the Appellant went ahead to withdraw the twenty-seven (27) SIM registration kits assigned to the Respondent. Consequent upon the foregoing, the Respondent filed an action against the Appellant seeking a declaration that the purported termination of the agreement between parties is invalid, oppressive and wrongful. Damages in the sum of N500,000,000.00 was also claimed against the Appellant.
In its defence, the Appellant stated that, the agreement was validly terminated for reason of non-performance. Evidence was led by the parties, and in its Final Written Address, the Respondent argued that, the Statement of Defence of the Appellant was defective as it did not disclose the name of the Legal Practitioner who signed the defence “for: G. Akitoye Esq.” The Court agreed with the Respondent, and expunged the evidence predicated upon the defective defence. In the course of writing the judgement, the court found that the Agreement (Exhibit A) was not signed by the Appellant, and called on the parties to address it on the weight to be attached to the agreement. After hearing submissions of parties, the court held that, the document was rightly admitted in evidence. The trial court found for the Respondent and awarded general damages of N250,000,000.00 against the Appellant. The Appellant’s appeal against the decision was adjudged unmeritorious; hence, the further appeal to the Supreme Court.
Issues for Determination
1. Whether the Court of Appeal was right, when it acted on extraneous matters including the evidence of DW1 at the trial, in reaching its decision to affirm the judgement of the trial court.
2. Whether the Court of Appeal was right, in holding that the document which was admitted in evidence at the trial as Exhibit “A” created an implied, binding and enforceable contract between the Appellant and the Respondent.
3. Whether the affirmation of the award of general damages made to the Respondent against the Appellant and the award of costs made against the Appellant, are justified.
Arguments
On the first issue, counsel for the Appellant submitted that, the effect of the unchallenged finding of the trial court that the statement of defence was incompetent, and that the evidence of DW1 was of no moment, is that the statement of defence never existed – He posited that, the foregoing finding was affirmed by the Court of Appeal; in that wise, the Reply to the Statement of Defence and the Further Deposition of CW1, were also void and should be expunged from the record. He reasoned that, any evidence extracted from CW1 on facts not pleaded are inadmissible, just as the award of N100,000,000.00 damages in favour of the Respondent, which he submitted, was based on extraneous facts.
Counsel for the Respondent countered the submission above, stating that any decision on any point of law or fact which was not appealed against, is deemed to have been conceded by the party against whom it was decided, and remains valid and binding on all the parties. He submitted that, the Appellant did not challenge the assertion in its Reply Brief, and that the decision of the lower court was not based on extraneous matters, but on clearly pleaded facts in the statement of claim. Counsel argued further that, though the statement of defence was struck out, the viva voce evidence of the Appellant’s witness under cross- examination, in effect, challenged the statement of claim, and having put himself forward to be cross-examined, the court was entitled to rely on the oral evidence elicited from him under cross-examination, which corroborated facts in the statement of claim. He posited that, the courts below did not rely on facts in the Reply or the Respondent’s Further Deposition, but on admissions by DW1 that the Appellant is entitled to the sum of N100,000,000.00 for the SIM Cards re- activation. This admission against interest, counsel submitted, is admissible.
Arguing issue No. 2, counsel for the Appellant submitted
U.A.C. V. MCFOY (1961) 3 All ER 1169.
that, parties, and not the court, make their contracts, and when contracts are reduced into writing, the duty of the court is to identify if a valid contract was created, the terms of the contract as expressed in the document, and to apply those terms in determining the rights of the parties. He opined that Exhibit A, which is a written document, cannot be varied, except by another document in writing. Exhibit A was expected to come into existence on the date the last person executed same, and since the Appellant had not executed same when it was handed over to the Respondent, it remained a worthless document. Responding, counsel for the Respondent submitted that, the validity of Exhibit A, was never an issue throughout the trial; the weight to be attached to the document, arose from the issue raised suo motu by the trial court in the course of writing judgement. Counsel submitted that, in line with the findings of the trial court, parties transacted business on the basis of Exhibit A, and failure of the Appellant to append its signature thereto, was of no moment.
On the third issue, it was submitted for the Appellant that, the evidence on record did not justify the reliefs granted by the trial court, especially as the losses allegedly suffered by the Respondent were not traceable to Exhibit A. The Respondent countered the submission and argued that, in making the award, the court had recourse to Clause 5 and other Sub-Clauses in Exhibit A, and the undisputed evidence of CW1, coupled with the business relationship between parties.
Court’s Judgement and Rationale
if a decision is right, it would be upheld, notwithstanding the fact that a wrong reason was given for the decision.
On the first issue, the Supreme Court held that,
It is only when the misdirection has caused the court to come to a wrong decision, that it would be material. The main grouse of parties relates to the award of N100,000,000.00, for the SIM Cards reactivated by the Respondent.
The submission that the evidence elicited under cross-examination should be jettisoned, in view of the incompetent statement of defence is not tenable, given the purpose of cross-examination, as a tool for discrediting the evidence of the opposition and enhancing the case of the party cross-examining. Evidence elicited from the cross-examination of a defence witness, which is in line with the facts pleaded by the Plaintiff, forms part of the evidence produced by the Plaintiff in support of facts pleaded in the Statement of Claim, and can be relied upon in proof of the facts in dispute between the parties ADEOSUN v GOVERNOR, EKITI STATE (2012) 4 NWLR (Pt. 1289) 581 at 602.
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The admission by DW1 under cross-examination, that the Respondent was entitled to the stated sum for the SIM Kit activation, is an admission against interest. Parties are required to plead facts, not evidence, and the court is entitled to draw inferences from the evidence before it, as rightly done by the lower court.
Addressing the second issue, the Apex Court noted that, it is not the duty of the Supreme Court to embark on a fresh appraisal of the evidence merely to reach a different conclusion, or to substitute its views for those of the courts below. In this case, all the Exhibits tendered by the Respondent in support of its pleadings, including Exhibits A and B, were admitted without objection from the Appellant. The frontloaded deposition on oath of a witness in support of pleadings, constitutes his evidence-in-chief in the proceedings; hence, the submission that the Respondent did not lead evidence to demonstrate the terms of Exhibit A, is not correct. The authenticity of Exhibit A was never challenged by the Appellant at the trial court, and cannot be made an issue before the Supreme Court. Further, a party seeking declaratory reliefs must succeed on the strength of his own case, and not on the weakness of the defence or admission of the Defendant. The Respondent in this case, did what was required of him by tendering evidence in support of its claims, and the admission by DW1 bolstered the Respondent’s claim. On the submission about the validity of Exhibit A, which was not signed by the Appellant, the court held that, the Appellant could not be allowed, by deliberately withholding its signature, to take advantage of its wrong doing, and use it as a weapon against the Respondent who was diligent to execute its part of the agreement.
It is morally despicable, for a person who has benefitted from an agreement, to turn around and say that the agreement is null and void, or is unenforceable, as contended by the Appellant.
an award of damages is within the discretionary powers of court, the exercise of which must be based on evidence before it. The object of an award of general damages, is to compensate the Plaintiff, as far as money can do so, for the loss or injury he has suffered, based on the principle of restitutio integrum.
Deciding the third issue, the court held that,
The trial court took into consideration all the immediate losses pleaded and led evidence on by the Respondent, which were reasonably within the contemplation of the parties at the time of the contract. The Respondent’s claim for damages was not contradicted, and the trial court was bound to accept the evidence.
On the whole, the court resolved all the issues against the Appellant.
Appeal Dismissed.
Representation:
D.C. Denwigwe, SAN with J.O. Asoluka Esq. and C.U. Onyeukwu, Esq. for the Appellant.
Nyengierefaka Joshua, Esq. for the Respondent.
Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))