Chukwuemeka Anagor V Efab Properties Ltd (2443 of 2012)  NGFCHC 1 (05 July 2017);
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY,
IN THE ABUJA JUDICIAL DIVISION,
HOLDEN AT COURT NO. 18 JABI, ABUJA.
BEFORE HIS LORDSHIP: HON. JUSTICE O. A. MUSA.
Suit No. FCT/HC/CV/2443/2012
CHUKWUEMEKA ANAGOR ...... PLAINTIFF
EFAB PROPERTIES LTD …… DEFENDANT
JUDGMENT DELIVERED ON THE 6TH JULY, 2017
The Plaintiff in this suit filed a writ of summons on the 21/02/2012 on the
undefended list against the 1st Defendant who filed a notice of intention
to defend and upon due consideration by this Court transferred the suit to
the general cause list and ordered for pleadings to be exchanged by
parties on 10/05/2012.
Upon the application of the 1st Defendant herein, the 2nd Defendant by
leave of the Court granted on the 12/07/2012 was join as a party to this
suit. This is the claims of the Plaintiff against the Defendants are as follows:-
a. An order directing the 1st Defendant to immediately refund the
Plaintiff the sum of N29,400,000.00k (Twenty Nine Million, Four
Hundred Thousand Naira) being the total sum of money paid to the
1st Defendant for four (4) shops at EFAB Shopping Mall which the 1st
Defendant has failed to deliver to the Plaintiff.
b. Interest at the rate of 21% per annum on the judgment sum from the
3rd day of May 2008 until the judgment sum is liquidated.
c. The sum of N5, 000,000.00k as damages.
Pleadings have been exchanged. The Plaintiff give evidence for himself
as PW1 tendered four (4) Exhibits and closed his case. The 1st Defendant
on its part tendered five (5) Exhibits in all while on the part of the 2nd
Defendant, three (3) witnesses were called and it tendered 18 Exhibits
and closed its case.
1st and 2nd Defendants with the leave of Court filed their written addresses
which were adopted on the 15/05/2017 while Plaintiff filed his written
address on the 03/05/2017 and adopted same on the 15/05/2017. Also in
response to Plaintiff’s address, the 2nd Defendant filed a reply on point of
The case of the Plaintiff is that he paid the sum of N29, 400,000.00k
(Twenty Nine Million, Four Hundred Thousand Naira) to the 1st Defendant
via its First Inland Bank Plc Account No. 236435081101.
The payment was in respect of four (4) shops at the EFAB Shopping Mail,
Garki Abuja owned by the 1st Defendant, the sum paid was part –
payment leaving a balance of N600,000.00k (Six Hundred Thousand
Naira) which the Plaintiff was required to pay upon the 1st Defendant
completing the shop and handing over same to him.
The 1st Defendant did completed the shops but handed over the shops
to the 2nd Defendant and despite repeated demands from the Plaintiff,
the 1st Defendant has refused and or neglected to give him the shops or
refund the money he paid.
On the part of the 1st Defendant its case is that sometime in December
2007 one Mr. C. F. Attang approached it on behalf of the 2nd Defendant
and paid for six (6) shops in installment at its EFAB Shopping Mall then still
under construction. The payments were made in installment as earlier
said, and the final payment of which was made on 8/7/2008. And the 1st
Defendant issued the 2nd Defendant the receipt of payment in its name.
That upon the completion of the shops the 1st Defendant handed over
the shops to the 2nd Defendant.
According to the 1st Defendant, the Plaintiff it was who brought the bank
teller used by the 2nd Defendant to pay for the shops and the receipts
were issued to the Plaintiff in the name of the 2nd Defendant and that the
Plaintiff never at anytime bought any shops from the 1st Defendant and
the 1st Defendant is not owing the Plaintiff.
The case of the 2nd Defendant is that the Plaintiff his it staff and upon his
business proposal, the 2nd Defendant decided to buy six (6) shops at the
1st Defendant EFAB Mall Shopping Complex Garki II Abuja.
Towards this, the 2nd Defendant paid the 1st Defendant for the shops
through the Plaintiff’s account and receipt were issued to it by the 1st
Defendant. When the shops were ready, the 1st Defendant handed them
over to it (2nd Defendant).
The 1st Defendant in his written address raised one issue for determination
“Whether the Plaintiff has proved his case against the 1st
Defendant to be entitled to the reliefs sought”
The second Defendant on his part raised three issues for determination
1. Whether given the facts of this case, there was a contractual
relationship between the Plaintiff and 1st Defendant which the Court
2. Whether the Plaintiff acted as an agent for the 2nd Defendant in the
process and procedure leading to the purchase of the six (6) shops
by the 2nd Defendant from the 1st Defendant.
3. Whether considering the evidence before this Court including all
the Exhibits the 2nd Defendant not the Plaintiff is the bonafide
purchaser of shops D11, D02, C07, C04, C03 and C08 situate at EFAB
Mall Shopping Complex Area II Garki Abuja, the subject matter of
While the Plaintiff on the other hand raised one issue for determination to
“Whether the Plaintiff herein has made out his case upon the
balance of probabilities and is entitled to the reliefs sought”
1st Defendant Counsel submitted that it is settled law that he that asserts
must prove in order to succeed in his claim. Isegbkun V. Adelaki (2003) 2
NWLR (part 1337) p. 165, paragraphs G – H.
Counsel submitted further that it is settled law that an unchallenged,
uncontroverted averment stands admitted and will be taken as the true
state of affairs. He cited the case of Salzgitter Stah (Gmbh) V. Tunji
Dosunmu Industrial Ltd (2010) 42 (part 2 NSCQR 1085 at p. 1109, Per C. M
Chukwuma – Eneh, Jsc.
Counsel further submitted that the Plaintiff had ample opportunity to cross
examine the 1st Defendant’s witness and produce documents in rebuttal
of 1st Defendant’s claim and assertions, but has failed to do so, i.e. to
shake / dislodge the facts placed before the Court by the Defendant.
He referred the Court to the case of Omodele Ashabieya And 2ors V.
Alhaji Risikatu Lopade & 1or (2011) 11 NWLR (part 1259) page 505 at 534
paragraphs C – D, the supreme Court held as follows:-
“Where a party fails to adduce evidence in support of any
assertion in his pleading he is deemed to have abandoned his
pleading on the fact”.
Again Counsel submitted that the Plaintiff has been unable to discharge
the burden of proof placed on him.
On right to comment on documents before the Court, counsel submitted
that parties to a suit have all the right to comment on documents already
in evidence before the Court. He stated that this position of law was
restated by the supreme Court in the case of General Muhammadu
Buhari V. Independent National Electoral Commission & 4ors (2008) 19
NWLR (part 1120) page 246 at page 392 paragraphs E – H, thus:-
“Counsel on all sides are free to comment on documents which
had been tendered in evidence, including drawing inferences
and conclusions at the address stage”.
Counsel submitted that from Exhibit DB8 – DB18 i.e. judgment in suit No.
FCT/HC/CV/1059/2009, it is crystal clear that Plaintiff was staff of 2nd
Defendant and drew salary monthly.
That it is also on record that Plaintiff has been paying for items on behalf
of 2nd Defendant e.g. stocks, generators, rents, payment of staff salaries
That he employed staff for and on behalf of 2nd Defendant as manager of
the 2nd Defendant.
Counsel submitted that this judgment, i.e. Exhibit DB8 – DB18 and facts
contained therein are res judicata. They operate as estope against the
Plaintiff. Furthermore they have neither been appealed against, varied,
set aside nor overturned by any appellate Court.
In view of the foregoing, counsel stated that the Plaintiff cannot, in the
instant case, be permitted or allowed to deny or contradict these facts
by his oral testimony.
He referred the Court to the case of Madu V. Madu (2008) 6 NWLR (part
1083) p. 296 at 324 paragraphs F – H, the supreme Court held as follows:-
“Oral evidence cannot be used to contradict contents of
documentary evidence. in the instant case, any oral evidence
by the respondent or relied upon by the Court of appeal to
show that the land in dispute belonged to any person other
than the appellant is inadmissible as it amounts to using oral
evidence to contradict contents of documentary evidence”.
Also section 128 (1) of the Evidence Act Cap. 14 2011 provides as follows:-
“When a judgment of a Court or any other judicial or official
proceeding, contract or any grant or other disposition of
property has been reduced to the form of a document or series
of documents, no evidence may be given of such judgment or
proceeding or of the terms of such contract, grant or
disposition of property except the document itself, or
secondary evidence of its contents in cases in which secondary
evidence is admissible under this act; nor may the contents of
any such document be contradicted, altered, added to or
varied by oral evidence”.
Counsel submitted that it is settled principle of law that where there is oral
evidence as well as documentary evidence, the documentary evidence
should be used as a hanger for which to assess the oral testimony.
He cited the cases of Fashanu V. Adekoye (1974) 6 sc 83; Kindey V.
Military Gov. of Gongola State (1988) 2 NWLR (pt. 77) p. 445; Hawad
International Schools Ltd V. Mina Project Ventures Ltd (2003) 39 WRN 57 at
69 and Submit Finance Company Ltd V. Hon. Baba & Sons (2003) 48 WRN
81 at 105.
Counsel then submitted that applying this principle of law to the Plaintiff’s
evidence before the Court, the Plaintiff’s oral testimony/evidence before
the Court is inconsistent with the documentary evidence i.e. Exhibit DB8 -
DB18 before the Court. I.e. the judgment of Court, payment receipt for
purchase of EFAB shops etc.
He stated that it is also settled law that more weight and value is to be
accorded documentary evidence than oral testimony, as oral testimony
could be deceptive and misleading but documentary evidence cannot.
He referred the Court to the case of Udeora V. Nwakonobi (2003) 4 NWLR
(pt. 811) p. 643 at 674h – 655b.
Counsel submitted that Plaintiff is not a witness of truth as he has not been
consistent in his testimony.
He stated that where there is inconsistency and or contradiction in the
testimony or evidence of a party, the only option available to the Court is
to throw out/discard the entire evidence.
Counsel further submitted that he that alleges must proof Citing section
131 and 132 of the Evidence Act, 2011.
On issuance of purchase receipt of EFAB mall shops in 2nd Defendant’s
name: that it is a settled Supreme Court decision that a certificate of
occupancy properly issued by a competent authority raises the
presumption that the holder is the owner thereof in exclusive possession of
the land. The certificate also raises the presumption that at the time it was
issued, there was not in existence a customary owner whose title has not
been revoked. The presumption is only rebuttable if it is proved by
evidence that another person had a better title to the land before the
issuance of the certificate of occupancy, in which case the certificate of
occupancy will stand revoked by the Court. He referred the Court to the
case of Grace Madu V. Dr. Bertram Madu (2008) 6 NWLR (part 1083) p.
296 at 302.
On presumption raised where property is purchased in name of another:
the Court will imply or presume in a situation where a purchase of
property is made in the name of anther that other holds the property for
the benefit of the person who advanced money for the purchase of the
property. The law in such a situation presumes that the intention was that
the property should be held on trust by the third transferee. The same
principle applies where the purchase money was provided partly by the
person to whom the property is transferred and partly by another or
others. In such cases, the transferee holds the property in trust for all the
persons who contributed to paying for it with each having beneficial
interest proportionate to the amount of purchase money he advanced.
In the instant case, although the respondent in his evidence before the
trial Court said he paid all the money required for the land, contrary to his
assertion, all the receipts are in the name of the appellant. The trial Court
was right in its evaluation that the pieces of evidence do not create a
resulting trust in favour of the respondent.
In conclusion, counsel submitted that the above highlighted statements
of witness are consistent with their testimony in Exhibit DB8 – DB18 before
That it is settled law that an unchallenged, uncontroverted and uncontradicted
averment stands admitted and will be taken as the true
state of affairs. Cited the case of Salzgitter Stah (Gmbh) V. Tunji Dosunmu
Industrial Ltd (2010) 42 (part 2 NSCQR 1085 at p. 1109, Per C. M
Chukwuma – Eneh, Jsc:-
“Where a party fails to adduce evidence in support of an
assertion in his pleading, he is deemed to have abandoned his
pleading on the fact”.
Also in Omodele Ashabieya & 2ors V. Alhaji Risikatu Lopade & 1or (2011)
NWLR (part 1259) page 505 at 534 paragraphs C – D.
Counsel submitted that the burden of proof placed on the Plaintiff will
not shift until the Plaintiff have proved its case to the satisfaction of the
Court that it is entitled to the reliefs sought.
Counsel submitted that the Plaintiff has not discharged the burden
placed on him in this suit.
That a cursory appraisal of Plaintiff’s evidence before the Court and
Exhibits tendered, points to the fact that his claims cannot stand.
On the part of the 2nd Defendant, counsel stated that the Plaintiff counsel
submitted that the law is settled that only a party to a contract can
enforce it. A stranger to a contract cannot enforce it even if the contract
was made for his benefit. He cited the case of Makwe V. Nwukor (2001)
M.J.S.C.179 at 182 ratio 1.
In the instant case, it is submitted that there was no contractual
relationship between the 1st Defendant and the Plaintiff over 4 no. shops
which this Court can enforce. This assertion is predicated on the facts of
this case and evidence adduced by the parties.
Counsel stated that in paragraphs 3 and 8 of witness statement on oath
dated 12th November, 2012, DW1 vividly captured the procedure for the
sale of shops thus:
a. The prospective purchaser will obtain the 1st Defendant’s bank
b. Lodge the purchase price of the shop he intends to buy in the bank;
c. Submit the bank teller to the 1st Defendant ;
d. The 1st Defendant issues receipt acknowledging payment and;
e. Indicate the shop numbers the purchaser paid for;
Similarly, counsel then submitted that the claim of the Plaintiff when
subjected to the procedure outlined by the 1st Defendant as the
procedure for buying shops, did not comply at all. No shops were
selected, even though receipt was issued, it was in the name of the 2nd
Defendant and no form was purchased nor paid for. He submitted that
there was no acceptance of offer by the Plaintiff to buy shops from the 1st
Defendant and urged the Court to hold. He referred the Court to the
case of Metibaiye V. Narelli Int’l Ltd (2009) 16 N.W.L.R (pt. 1167) 327 @ 331
ratio 4, C. A. held that:-
“An acceptance of offer is the reciprocal act or action of the
offeree to an offer by which he indicates his agreement to the
terms of the offer as conveyed to him by the offeror. An
acceptance of an offer may be demonstrated:
a. By the conduct of the parties or;
b. By their words;
c. By documents that have passed between them.”
Counsel further stated that for an acceptance to be valid and operative,
it must be plain, unequivocal, unconditional and without variance of any
sort between it and the offer. He cited the case of Orient Bank (Nig) Plc
V. Bilante International Ltd (1997) 8 NWLR (pt. 515) 37.
In the case under consideration, in terms of conduct of parties, words and
documents between them, the only link of the Plaintiff to the sale or
purchaser of shops in EFAB mall is the presentation of photocopy of a
bank teller Exhibits AA1 & AA2 to the 1st Defendant there is no evidence
that the 1st Defendant issued a receipt to the Plaintiff acknowledging
the payment he allegedly made in respect of (4) shops or that the shop
numbers he claimed he paid for were indicated, rather it was additional
payment in respect of 6 no shops that were received by the 1st
Defendant and receipted of payment was accordingly made and
forwarded to the 2nd Defendant. The Plaintiff did not pay the balance of
the purchase price and therefore did not fill any form to that effect.
Counsel urged the Court to hold that there was no contract or
contractual relationship between the Plaintiff and the 1st Defendant
which this Court can enforce.
On issue 2: whether the Plaintiff acted as an agent in the process and
procedure leading to the purchase of 6 no of shops by the 2nd
Counsel referred the Court to the case of Bamgboye V. Unilorin (1999) 10
NWLR Pt. 622 ratio 2 pg 383 – 384 the Court defined an agent thus:
“An agent is one who is authorized to act for or in place of
another, a representative. The word “agent” denotes one who
acts, a doer etc. who accomplishes a thing or things. The agent
normally binds his principal and certainly not himself by the
contract he makes, an agent is a person authorized by
another to act for him, one entrusted with another’s business.
An agent means more or less the same thing as a delegate”
Counsel submitted that the PW1 on record said he was not the branch
manager of the 2nd Defendant but admitted he was chief operating
officer. Whatever his nomenclature may be, there is ample evidence to
show that the PW1, acted on behalf of the 2nd Defendant either as agent
or messenger in the process and procedure leading to the purchase of
the 6 no shops from the 1st Defendant.
He further stated that under cross examination by the counsel to 2nd
Defendant, PW1 was asked if in his relationship to the 2nd Defendant, you
had authority to collect money from the DW2 Chibuiheuko to execute
project for the 2nd Defendant, and he answer yes.
Again in paragraph 1 (u) of the witness statement on oath of the DW3,
he asserted “that on the 7th day of June, 2008, the 2nd Defendant gave
the Plaintiff through its accountant Chibuiheraiwe (Nee Ukoh) the sum of
USD$ 200,000 to change and pay to the 1st Defendant the sum of N29,
400,000.00 only as additional payment for the 6 no shops which the
Plaintiff only paid as agent of the 2nd Defendant and submitted the tellers
to the 1st Defendant on behalf of the 2nd Defendant and receipt no1389
was issued to the 2nd Defendant.
He further submitted that under cross examination by the Plaintiff counsel,
the DW3 stated that the receipt of payment of the shops from EFAB
property brought back in the name of the company as an
acknowledgment of payment is the evidence to show that Plaintiff
collected money. PW1 under cross examination by 1st Defendant counsel
as to why PW1, paid the sum of N29,400,000.00 to the 1st Defendant
without collecting receipt, PW1 in answer stated that “yes, but I have the
deposit slips. EFAB issued receipt to Mrs. Attang but not me. They are to
go and sought it out with her that is 1st Defendant.” it is submitted that the
Plaintiff has admitted that after the deposit of the additional payment for
the shops, the 1st Defendant issued receipt to the knowledge of the
Plaintiff which receipt he forwarded to the 2nd Defendant. It is submitted
that this is an admission against interest. He referred the Court to section
20 Evidence Act.
In addition, counsel submitted that it is a fact not in dispute to state that
the PW1 was an agent of the 2nd Defendant in the process leading to the
purchase of the 6 no shops in view of the admission of the PW1 that he
had on several occasions collected money from the Attang family to
purchase items on their behalf. Of particular importance is the fact that
the PW1 had on several instances done so through his account as per
Exhibit DB14 and the payment thereof. Also, in the process leading to the
incorporation of the 2nd Defendant, PW1 equally admitted under cross
examination that he received money from DW3 through his account to
pay the lawyer that incorporated same. All the receipts issued to the PW1
for the transactions done on behalf of the 2nd Defendant were dutifully
submitted to the 2nd Defendant. Similarly, Exhibit HB1 also show that PW1 is
and had always been the agent of the 2nd Defendant, and that his
collecting money for additional payment of shops for which he already
deposited money on behalf of the 2nd Defendant is consistent with his role
as agent of the 2nd Defendant, and urged the Court to so hold.
On issue 3: whether, considering the evidence before this Court, including
all the Exhibits, the 2nd Defendant not the Plaintiff is the bona fide
purchaser of shops D11, D02, C03, C04, C07 and C08 situate at EFAB Mall
Shopping Complex Area 11, Garki Abuja, the subject matter of this suit.
Counsel had argued in issue one that there was no contractual
relationship between the 1st Defendant and the Plaintiff and therefore, all
that the Plaintiff did in connection with the sale and purchase of the 6 no
shops namely D11, D02, C03, C04, C07 and C08 was to act as agent of
the 2nd Defendant in the process leading to the purchase of the shops.
That taking a cue from the procedure for the sale of the shops as
highlighted by the DW1, one will agree with the submission that the 2nd
Defendant is the person who accepted the offer of the 1st Defendant for
the purchaser of 6 no shops. Also, the 2nd Defendant was able to prove by
credible evidence that they actually made a deposit for the shops and
went ahead to complete payment and then fill the form which was the
final stage of the transaction.
Consequently, in the case of the Plaintiff, there is ample evidence to show
that he never complied with the procedure listed by the 1st Defendant for
the purchase of shops from them. Besides, what the Plaintiff alleged he
paid for was 4 no shops as against that of the 2nd Defendant which is 6 no
shops. All the Exhibits tendered by the PW1 did not conform with his
assertion that he made payment of 4 no shops, as payment of money in
the bank by a particular person does not conclusively prove the
ownership of the money or the source of the money. Again, the PW1
failed to call as witness both the service providers particularly MTN to
prove that the alleged text message reportedly sent to his phone was
indeed from them or that the messages was indeed from the telephone
handset of Stella, a former staff of the 1st Defendant. Neither Stella nor
any staff of the 1st Defendant was subpoenaed to come and testify in
Court in respect of that particular evidence canvassed by the PW1 in
In another submission, counsel submitted that indeed there was no
substance in the tellers Exhibits AA1 and AA2 to support the claim that
the Plaintiff paid the sum of N22,500,000.00 for 3 no shops or that he
deposited the sum of N6,900,000.00 for the 4 no shops. He equally failed
to tender any payment slip to substantiate the assertion. He therefore
submitted that the Court is left with no option than to Acton the evidence
before it which is Exhibits DB1 – 7, and Exhibits DB 8 – 15 to hold that the
2nd Defendant, not the Plaintiff is the bona fide purchaser of the 6 no
shops namely D11, D02, C03, C04, C07 and C08 from the 1st Defendants
and urged the Court to so hold.
Counsel has further shown that:
1. The Plaintiff had no contractual relationship with the 1st Defendant
which this Court can enforce.
2. That in the process leading to the purchase of 6 no shops from the 1st
Defendant, the Plaintiff only acted as an agent of the 2nd
3. Finally, that the 2nd Defendant, not the Plaintiff was the bona fide
purchaser of the 6 no shops from the 1st Defendant and urged the
Court to so hold.
Counsel urged this Honourable Court to dismiss the entire suit of the
Plaintiff with substantial cost.
On the part of the Plaintiff, counsel submitted that this case revolves
round the ownership of the sum of N29, 400,000.00 (Twenty Nine Million,
Four Hundred Thousand Naira) paid to the 1st Defendant for the purchase
of shops. To ascertain the veracity of the claims of the parties in
accordance with the law, it is necessary to first of all draw out the
following facts which are not in dispute between the parties:-
a. On the 3rd day of June 2008, the Plaintiff paid a total sum of N29,
400,000.00 (Twenty Nine Million, Four Hundred Thousand Naira) to the
1st Defendant. he referred to paragraphs 3, 4, 5, 6, and 7 of the
Plaintiff’s statement claim; paragraphs 4, 5, 6, 7, 8, and 9 of the
Plaintiff’s statement on oath dated the 24th day of May, 2012;
paragraph 7 of the first Defendant’s amended statement of
defence dated 5th day of August, 2013; Exhibit AA1 and AA2 (the
First Inland Bank Deposit Slips No. 4433351 and 4433352 both dated
the 3/06/2008 showing the said payment).
b. The said payment was made by the Plaintiff in his own name. He
referred to Exhibit AA1 and AA2 (the First Inland Bank Deposit Slips
No. 4433351 and 4433352 both dated the 03/06/2008 for the sums of
N17, 700,000 and 11, 700,000 respectively, evidencing the said
payments in the name of the Plaintiff).
c. The payment was part payment for four shops to be built by the 1st
Defendant. He referred to paragraphs 8 and 9 of the Plaintiff’s
statement of claim and paragraph 9 of the witness statement on
oath both dated 24th day of May, 2012.
d. There is no documentary evidence before the Court or anywhere
showing that the sum of $200,000 (two Hundred Thousand us dollars)
was given to the Plaintiff and that he converted same to Naira
which he used to pay the 1st Defendant on behalf of the 2nd
e. There is no evidence before the Court showing that the exchange
rate of the dollar and Naira on the 3rd day of June 2008 of the sum of
$200,000 (two Hundred Thousand us dollar) would amount to N29,
400,000.00 (Twenty Nine Million, Four Hundred Thousand Naira).
f. The shops were not delivered to the Plaintiff who made the payment
and the money paid was not also refunded to the Plaintiff.
Counsel submitted that with the above undisputed fact, there is nothing
more in dispute. The claim of the Plaintiff succeeds. What is very clear
now is that the 1st and 2nd Defendant have connived in this futile venture
to rob the Plaintiff of his money.
Counsel further submitted that from the testimony before the Court, DW2
who is an accountant claimed she gave a huge amount of $200,000 (two
Hundred Thousand dollars) to the Plaintiff without showing the Court any
form of acknowledgement or receipt of the said money. She however
admitted under the heat of cross examination that all monies given to the
Plaintiff were acknowledged by the Plaintiff as received. However, no
document was shown to the Court where the Plaintiff acknowledged the
receipt of the money. Furthermore, no document was shown to the Court
to prove that DW2 or the 2nd Defendant was ever in possession of such
money. In fact the audit report of the 2nd Defendant which was tendered
by the 2nd Defendant’s DW2 did not show the existence of any such
money in the company. There is no evidence before the Court showing
that the exchange rate of the dollar and Naira on the 3rd day of June
2008 of the sum of $200, 000 (Two Hundred Thousand Us Dollars) would
amount to N29,400,000.00 (Twenty Nine Million, Four Hundred Thousand
Naira). It is absolutely doubtful that a professional accountant like DW2
who has practiced for many years as an accountant would deal with
such a huge amount without any form of documentation. This
Honourable Court cannot believe such frivolous claim. He urged the
Court to discountenance the testimony of DW2 for lack of credibility and
reliability and declare that she is not a witness of truth.
Counsel submitted that it is trite that whoever wants the Court to grant
judgment in his favour based on the existence of any fact must prove
that such fact exists. The Plaintiff has denied that the 2nd Defendant gave
him money to purchase shop. The 2nd Defendant having failed to prove
that it actually gave the Plaintiff the money cannot disprove the claim of
the Plaintiff and have judgment in its favor. This he urged the Court to so
That various oral testimony of the Defendants in relation to the fact in
issue which is the ownership of the sum of N29, 400,000.00 (Twenty Nine
Million, Four Hundred Thousand Naira). Paid to the 1st Defendant cannot
be allowed to vary the compelling documentary evidence in support of
the Plaintiff’s claim.
Counsel submitted that the trite position of law is that oral evidence is
inadmissible to vary, add or contradict the contents of a document. He
cited the cases of Ogundele & Anor. V. Agiri & Anor (2009) lpelr-2328 (SC),
Per Muntaka Coomassie, JSC at pages 24 -25, paragraphs C – A.; Union
Bank Of Nigeria Ltd V. Professor Albert Ojo Ozigi (1994) LPELR – 33 89 (SC),
Per Adio, JSC at page 15 , paragraphs D – E and Biosola Nigeria Ltd &
Anor V. Afribank Nigeria Plc & Ors. (2013) LPELR – 22062(CA), Per Iyizoba,
JCA at pages 34 -35, paragraphs G – A.
That it is a settled law that where there are both oral and documentary
evidences the Court is enjoined to use the latter as a hanger to test the
veracity of the former. He cited the cases of Egharevba V. Osagie (2009)
LPELR – 1044 (SC), Per Ogbuagu, JSC @ pages 34 – 35, paragraphs E – A.;
Jinadu & Ors V. Esurombi – Aro & Anor (2009) LPELR – 1614 (SC), Per
Oguntade, JSC at pages 32, paragraphs A – F; and Abubakar V. PWaspo
(2012) LPELR – 9786 (CA), Per Ekpe, JCA at page 21, paragraphs C – F.
Counsel submitted that the Plaintiff has proved that he paid for the shops
and at no time authorized the 1st Defendant to transfer the payment in
favour of the 2nd Defendant. DW1 (the 1st Defendant’s manager)
corroborated the fact that payment to any person or 3rd party. He
referred the Court to DW’s answer to question put to him by the Plaintiff’s
counsel during cross examination. This being the case, the 1st Defendant is
liable to the claims of the Plaintiff because it has acted without the
Plaintiff’s authority. This he urged the Court to so hold.
Finally counsel submitted that the Plaintiff has proved that he paid the
sum of N29, 400,000.00 (Twenty Nine Million, Four Hundred Thousand
Naira) to the 1st Defendant as part payment for Four shops with his money
and the 1st Defendant has failed to deliver the shop to him. The Plaintiff is
therefore entitled to the refund of his money and all the reliefs sought.
In response to the lone issue by the Plaintiff and argument in his final
written address, the 2nd Defendant replies as follows:-
That the Plaintiff argued that the instant suit revolves around the
ownership of the sum of N29, 400,000.00 (Twenty Nine Million, Four
Hundred Thousand Naira) paid to the 1st Defendant for the purchase of
Counsel submitted that the issue before the Court is whether the payment
of the sum of N29, 400,000.00 (Twenty Nine Million, Four Hundred Thousand
Naira) was in respect of 4 no shops which the Plaintiff claim he made on
the 03/06/2008, or additional payment in respect of 6 no shops for which
the 2nd Defendant had deposited the sum of N15 Million and Exhibit DB9
was issued. He referred the Court to paragraphs 5, 6, and 8 of witness
statement on oath the Plaintiff made on 31st October, 2012, where the
Plaintiff averred that he made full payment for 3 shops on the 3rd day of
June, 2008, in the total sum of N22, 500, 000 and part payment of N6, 900,
000 to the 1st Defendant in respect of the 4th shop leaving a balance of
Counsel further submitted that the claim by the PW1 that no shops were
allocated to him because they were under construction and no receipts
were issued in respect of the payment of N29, 400,000 (Twenty Nine
Million, Four Hundred Thousand Naira) amounts to subversion of evidence
as Exhibit DB9 paid on the 13/12/2007 had shop numbers on it, as against
the purported payment of 03/06/2008. Besides, Exhibit DB10, receipt no
1389, evidencing the payment of N29, 400,000 was issued on the
07/06/2008; as against the claim of the Plaintiff.
Counsel submitted that in all, the payment of N29,400,000.00 (Twenty Nine
Million, Four Hundred Thousand Naira) was receipted for in the name of
2nd Defendant, and had not only additional payment on it, but also
contained the exact no of shops for which the payment was made.
This puts the matter beyond argument that the payment made on the
03/06/2008 by the PW1 was for the 6 no shops which the 2nd Defendant
had earlier deposited money for, and he urged the Court to so hold.
I have carefully read the processes filed by the parties in this case as well
as the Exhibits tendered by the witnesses called in this case. In the same
vein, I have watched the demeanor of witnesses and listen to their
testimonies while given evidence in this matter. To my mind this case can
be decided on the sole issue raised by the Plaintiff to wit:-
“Whether the Plaintiff herein has made out his case upon the
balance of probabilities and is entitled to the reliefs sought”
This issue is in tandem with the issue for determination as formulated by
the 1st Defendant and takes care of the three (3) issues distilled by the 2nd
Defendant for determination.
It is settled law that he who asserts must prove. In other words the burden
of prove is not static as it shift from side to side. In the case of Aminu V.
Hassan (2014) 5 NWLR (pt. 1400) 287 @ 316. the supreme Court Per Peter
Odiu J.S.C held:
“That the burden of proof rests upon the party who
substantially asserts the affirmative before the evidence is
gone into. The position therefore is that the burden of proof
lies on the person who would fail, assuming no evidence
had been adduced on either side. Also in respect of particular
facts, the burden rest on the party against whom judgment
would be given if no evidence were produced in respect of
those facts. Once that party produces the evidence that would
satisfy the Court then the burden shift on the party against
whom judgment would be given if no more evidence were
Generally in civil matters, proof is based on the preponderance of
evidence adduced at the trial see the cases of Odutola V. Aiyeleru
(1985) 1 NWLR (pt. 11) 92 and Osuji V. Ekeocha (2009) 16 NWLR (pt. 7166)
8. Further section 134 Evidence Act.
In the instant case, the burden of prove lies on the Plaintiff. The Plaintiff in
his amended pleading asserts that the four (4) shops situate at EFAB
Shopping Mall Garki – Abuja belongs to him. By asserting as he did, the
burdens on the Plaintiff are as I see it are as follows:-
1. That he had an agreement to purchase four (4) shops from the 1st
Defendant at EFAB Shopping Mall Garki – Abuja.
2. That the price per unit of the shops is N7, 500,000.00k (Seven Million,
Five Hundred Thousand Naira).
3. That he paid to the 1st Defendant a total sum of N29, 400,000.00k
(Twenty Nine Million, Four Hundred Thousand Naira) leaving a
balance of N600, 000.00k (Six Hundred Thousand Naira) towards
purchasing the shops.
4. That he paid for the shops in his name.
5. That the 1st Defendant has refused to give him the shops he paid for.
6. That he has made a demand on the 1st Defendant to give him the
shops or refund his money and the 1st Defendant has refused.
It is only when the Plaintiff has cross these hurdles that the burden of proof
in the instant case will shift to the Defendants. It is to be noted that the
Plaintiff must rely on his case and give cogent and compelling evidence
in support of his pleadings to enable him get judgment in his favour.
This is so because the Plaintiff cannot rely on the weakness of the defence
to prove his case. See the cases of Okedare V. Adebara (1994) 6 NWLR
(pt. 349) 157 and Motunwase V. Soroungbe (1988) 4 NWLR (pt. 92) 90. “A
party can only rely on the weakness of the defence where the Defendant
case supports his case. See the cases of Eze V. Atasie (2000) 10 NWLR (pt.
676) 470 and Shittu V. Fashawe (2005) 14 NWLR (pt. 946) 671.
Whether the Plaintiff has prove this state of affairs as outlined above can
only be glean from the set evidence adduce by him before the Court. I
must make haste to say, that all through the pleadings before this Court,
the Plaintiff never make any allusion as to the 2nd Defendant being liable
to him in anyway. So there seems to be no claims against the 2nd
Defendant in this matter. Be that as it may and put in a nutshell, the case
of the Plaintiff bothers on breach of contract and this Court will proved to
examine the pleadings of the Plaintiff and the evidence proffered in order
to arrive at a conclusion as to whether the Plaintiff has proved his case.
From the pleadings and reliefs claim by the Plaintiff, the Plaintiff asserts
that the 1st Defendant is in breach of the contract between it and the
Plaintiff in relation to the four (4) shops which according to the Plaintiff he
paid for but the 1st Defendant refused to hand over to him after
completing the building. Was the question is, was there any contract
between the parties? According to the Plaintiff, he bought the shops at
the rate of N7, 500,000.00k (Seven Million, Five Hundred Thousand Naira)
per shop. He claimed that he had paid the total sum of N22,500,000.00k
(Twenty Two Million, Five Hundred Thousand Naira) to the 1st Defendant
as full payment for three (3) of the shops while making a part payment
of N6,900,000.00k (Six Million, Nine Hundred Thousand Naira) as part
payment for the fourth shops leaving a balance of N600,000.00k (Six
Hundred Thousand Naira).
According to the Plaintiff, he made this payment to the 1st Defendant
through its account No: 236435081101 which the 1st Defendant
maintained with Finbank. It is the Plaintiff’s evidence that the duplicate
copies of the deposit slip number: 4433351 and 4433352 which he uses to
make the payment were handed over to the 1st Defendant.
In prove of the payment, the Plaintiff tendered Exhibits AA1 and AA2 i.e.
the said Exhibits AA1 and AA2 are the bank slips /teller.
However, the 1st Defendant in its defence had pleaded that its standard
procedure is when money is paid into its account, the person/client who
pays the money gives them a copy of the bank teller where upon a
receipt is issued to the person. And that in the present case it was one Mr.
C. F. Attang who approach it for the said shop in issue and not the
Plaintiff. In essence the 1st Defendant dispute that there is any agreement
between it and the Plaintiff for the purchase of any shops in issue. In the
case of Ogbonna V. Ogbuji (2014) 6 NWLR (pt. 1403) 205 @ 227. The Court
of appeal defines an agreement as follows:
“Agreement is a mutual understanding between two or more
persons about their relative rights and duties regarding past
or future performances; a manifestation of mutual assent by
two or more person”.
There is no dispute to the facts that the Plaintiff took tellers or bank slips to
the 1st Defendant purporting to be purchasing a shop in issue but was
there an agreement between them for the Plaintiff to purchase the
shops? This is the fulcrums upon which this case is hinge. Where there is no
agreement between parties there cannot be a breach of any such
On the face of it and from the view point of the Plaintiff, it would seem
that once the Plaintiff brought the teller then, there was an agreement for
him to purchase the shops established. But is that the case?
I do not think so. In the evidence of DW1, he stated before the Court that
the Plaintiff brought two bank tellers to the 1st Defendant and introduced
himself as manager of the 2nd Defendant and informed the 1st Defendant
that the tellers were payments for the shops purchased by the 2nd
Further, he said he instructed one Kenneth Ezesili to collect the teller and
issued receipt in the name of the 2nd Defendant and gave to the Plaintiff.
This piece of evidence was not contradicted by the Plaintiff.
Further under cross examination the Plaintiff admitted that he was the
chief operating officer of the 2nd Defendant. The 2nd Defendant in its own
evidence had given evidence that the Plaintiff was it employee and
tendered Exhibits i.e. (Two Identity Cards) issued to one Ifeanyi Ankwe
and Yakubu Garba in which the Plaintiff signed as chief operating officer.
Furthermore, the 2nd Defendant in its evidence told the Court that it had
transferred into the Plaintiff’s account various sums of money for payment
for the shops. It tendered the Zenith Bank Plc statement of account as
Exhibit DB8, DB18 i.e. judgment in suit no HC/FCT/CV/1059/2009. This piece
of evidence were not contradicted nor discredited by the Plaintiff in
I shall purse hereto make reference to Exhibit DB8 –DB18 which is the
judgment in suit no: FCT/HC/CV/1059/2009. Annexure to this judgment is a
statement of witness on oath.
In the said case, the Plaintiff herein was the 2nd Plaintiff therein. In the said
Exhibit, the Plaintiff deposed to the facts in that case that the 1st
Defendant therein bought shops no; 16, 17, 18, 19, 22, 42, 274, 275 and
290. He went further to give a breakdown of how payments were made
for those shops by the said 1st Defendant.
The Plaintiff herein in the said Exhibit DB8 – DB18 i.e. judgment in suit no:
HC/FCT/CV/1059/2009 did say that the 1st Defendant did incorporate the
2nd Defendant in the instant case. The question that comes up in this case
is shops number 16, 17, 18, 19, 22, 42, 274, 275 and 290 mentioned in
Exhibit DB8 – DB18 i.e. judgment in suit no: HC/FCT/CV/1059/2009 are the
same shops in issue in this suit. Also the question that readily come to mind
is, did the 1st Defendant herein repurchase the said shops from the
Defendant in Exhibit DB8 – DB18 (supra) and sold same to the Plaintiff.
No such evidence is before this Court which means at all material time
the shops in issue had been sold by the 1st Defendant to some other
person other than the Plaintiff. this much I hold is the evidence of the
Plaintiff himself as contained in Exhibit DB8 – DB18 i.e. judgment in suit no:
The witness statement on oath in Exhibit DB8 – DB18 (supra) was adopted
by the Plaintiff in that suit as his evidence.
I hold therefore that it is evidence which this Court can look at in
determining this suit. The law is that a Court of law in reaching a decision
in a suit before it is enjoined to take cognizance of all the documents
in its file see the case of Agbo V. The State (2007) 10 WRN 95 @ 107.
Furthermore evidence at variance with the Exhibit is not to be believed by
the Court see the case of Ukaegbu V. Nwololo (2009) 3 NWLR (pt. 1127)
194 @ 209 paragraphs E – F.
In the instant case therefore, I am unable to see my way through how the
Plaintiff can turn around after admitting that the property in issue had
been purchased by some other person from the 1st Defendant and now
said the property belong to him and should be given to him. That would
amount to a “Double Speak” a legal summersault of a monumental
dimension. A witness cannot blow not and cold at the same time, it is
interesting to note that the same Plaintiff who is claiming payment of the
shops in issue was said to have been issued a receipt by the 1st Defendant
when he submitted the said bank teller. The receipts were in the name of
the 2nd Defendant and they were given to the Plaintiff. There is no
evidence before the Court to show that he protested the issuance of the
receipts in the name of different persons. In fact, he did not even mention
that a receipt was issued by the 1st Defendant when he took the teller to
them. He only said he demanded for receipts and none was given to him.
I find the evidence of the Plaintiff unbelievable. No reasonable Court can
rely on the Plaintiff’s evidence to give judgment in his favour. I found that
the Plaintiff did not prove his case and I so hold. In the light of this, I hold
that the Plaintiff’s case is liable to been dismissed and I hereby dismissed
James Obinna Esq. for the 1st Defendant
Goodluck J. Agbo for the Plaintiff
A. E. Ezeamaka Esq. for 2nd Defendant