CITATION: (1973) 6 S.C. (REPRINT) 43

GEORGE B. A. COKER                                                JUSTICE, SUPREME COURT
ATANDA FATAYI-WILLIAMS                                       JUSTICE, SUPREME COURT
AYO G. IRIKEFE                                                           AG. JUSTICE, SUPREME COURT


JOLASIMI ZARIA                                                           DEFENDANT/APPELLANT


ALHAJI ABDU SMALL                                                    PLAINTIFF/RESPONDENT




(Delivered by COKER, JSC.)

This appeal is a sequel to proceedings instituted in the High Court, Kaduna, North-Central State by the present respondent as plaintiff against the appellant who was the defendant in that court. The action was for repayment of a total amount of £1,400 which the plaintiff alleged was due to him from the defendant. There were no pleadings and the case was tried summarily by Read C.J. who eventually gave judgment for the plaintiff against the defendant in the sum of £1,300 (or N2,600) with costs.

In the course of the trial in the High Court the plaintiff gave evidence to the effect that he had during the month of November, 1966, given a sum of £100 to the defendant to buy stones for him but that the defendant neither bought the stones nor refunded the money. The plaintiff also testified that on different occasions he lent the defendant amounts of £500, £200 £600 respectively, the last payment of £600 having been made to the defendant to enable him to complete a P.W.D. contract at Molunfashi and the previous amounts of £500 and £200 lent to him for the purposes of his other businesses. The plaintiff produced as Exhibit “A” the agreement between them for the loan of £600. The defence was manifestly that the entire debt has been repaid as well as the profits accruing from the respective businesses for which the loans were made. A number of questions directed to showing that these capital loans as well as the profits relating thereto had already been paid to the plaintiff by regular instalments were asked of the plaintiff in the course of cross-examination. The plaintiff admitted having received moneys from the defendant on several occasions in connection with these transactions but persistently stated that he did not remember the actual amounts which he had received. For instance his answers to such questions are of the following pattern :-

“Q. I put it to you that defendant paid you £722:12:6d as stated in Ex. „D?.

A. I know he gave me profit but I cannot say how much.”

Later in the course of his examination the following notes were made by the learned trial Chief Justice :-

“Q. I put it to you that the payments were for repayment of capital and profits.

A. No, that is not correct. I agree that under the agreement I was to recieve 2/5 of the profits derived from the £500. I confirm that all the payments defendant made to me were profits. It is correct that I gave defendant £600. I received money from Amodu Adape as profit derived from the £600. Defendant told me that £50 would be derived monthly as profits but nothing was given to me for 8 months. I cannot remember how much I received from Amodu Adape.

“Q. I put it to you that you received £678:2:6d from Amodu Adape in respect of the £600 loan.

A. I cannot remember.”

After the end of cross-examination, learned counsel for the plaintiff who was supposed to

re-examine his client instead asked for and obtained the leave of court to produce in evidence a letter which he stated the defendant had written to the plaintiff. The letter dated 16th March, 1968 was produced and admitted in evidence as Exhibit “E” and it reads as follows:-

“Dear Sir,


This is to refer to the agreement dated the 18th March 1966 and to advise you that due to the insolvency of the business for which a sum of £500, was taken from you, I have to advise you that the business has been wound up and the agreement is hereby repudiated as from today the 18th Mar. 1968.

The Capital of £500, taken would be refunded to you on monthly instalments through your banker commencing from the first week in April 1968, until the final repayment is effected.

Yours faithfully, (Sgd.) ..................


The plaintiff called no further evidence and closed his case.

The defendant Chief Joshua Adesinyun Jolasimi, alias Jolasimi Zaria, gave evidence and called three witnesses. The defendant stated with respect to the stones that he had already bought them but that the plaintiff had not turned up to collect the stones. With respect to the various loans he stated that he had repaid both the capital and the profits in full to the plaintiff by payments of £722:12:6d and £678:2:6d and that the last named amount of £678:2:6d was paid to the plaintiff in cash through one Amodu Adape alias Amodu Ajape.

Part of his evidence in this connection reads thus:-

“I paid him more than his share of profits. That was not by mistake. I have got no receipts for the payments I made. I have refunded the £500 month by month, from 1966 to December, 1967. By the end of the December, 1967, I no longer owed Plaintiff anything on the £500. I see Exh. “E”. I signed it. I signed it in March, 1968. I agree I admitted liability for that £500. The “£678:2:6d was paid to Plaintiff in the presence of Amodu Ajape.”

Concerning the letter, Exhibit “E” by which the defendant admitted owing the plaintiff an amount of £500 the defendant testified as follows:-

“In 1968 plaintiff came to my house in company of five others. Two were his sons. Plaintiff pointed at me “This is the man. Get my £500 from him now”. Three of the men jumped on me. I sent for police. I thought there was going to be a riot because I am the Chief of the Yorubas. I asked the police to go back when they came. I told the plaintiff to go back and I would send for him. I then wrote him a letter to put him off. I identify the letter. (Ex. “E” identified). I wrote Ex. “E” to keep him away and not to make confusion in my house which might result in riot in the country. At that time people were saying they had finished with the Ibos and the Yorubas were next.”

The defendant in support of his case called as witness a Registrar of the High Court, Kaduna, who produced as Exhibits „F? and „G? the transcripts of the evidence of Amodu Ajape who had been a witness in some two cases previously litigated by the parties and whose deposition was to the effect that the defendant had already paid to the plaintiff the sum of £678:2:6d in respect of the Malunfashi contract. The defendant also called a witness who stated that he knew the defendant was paying the plaintiff moneys as profits. The defendant’s driver was also called as his witness to describe the assault on the defendant on the day he had written and signed Exhibit “E”.

In the course of his judgment, the learned trial Chief Justice rejected the defence story that Exhibit “E” was written under duress. He observed on this point as follows:-

“It follows that I reject the defendant’s evidence that at that time not only had he repaid the £500 but he had repaid an excess of £130:18:9d and I accept the evidence of the plaintiff, in spite of its vagueness as to amounts, that the sums paid to him were in respect of profits only, pursuant to the agreement.”

The learned trial Chief Justice then reviewed all the evidence in the case and dealing with the plaintiff’s characteristic forgetfulness he observed thus:-

“At all times he said he could not remember how much these profits were. He was simply asked if he had received £678:2:6d from Amodu Adape and he replied “I cannot remember”. This is a very unsatisfactory answer but the plaintiff should have been fully cross-examined concerning the transaction, the alleged payment of £678:2:6d which the defendant later described in detail when he gave evidence. In these very unsatisfactory circumstances all I can say is that I am unimpressed, by the defendant’s version of what happened.”

In the end the learned trial Chief Justice dismissed the plaintiff’s claim for £100 but gave him judgment against the defendant for a total amount of £1,300.

The defendant has now appealed to this Court against that judgment and as stated by his counsel, his sole ground of appeal complains that the judgment is not supported by the evidence. On the other hand, learned counsel for the plaintiff urged us to affirm the judgment of the learned trial Chief Justice as the facts found by him are supported by the evidence which he had accepted. It was submitted to us for instance by learned counsel for the defendant that the learned trial Chief Justice had himself found the plaintiff to be an unsatisfactory witness and that the evidence of such a discredited witness should not have been made to ground a finding in favour of that witness.

We have ourselves studied carefully the record of this appeal and have come to the conclusion that the judgment for £1,300 is not supported by the clear facts of the case. We say nothing concerning the amount of £100 (or N200) which the plaintiff had given to the defendant to buy stones. The learned trial Chief Justice dismissed that claim observing as follows :-

“I find that the plaintiff has failed to prove breach of contract by the defendant over the supply of stone. His remedy is, of course, to collect his stone from the defendant’s quarry. His claim for the £100 fails.”

There has been no appeal before us concerning the dismissal of this claim.

At the stage when the plaintiff closed his case he clearly had established no case against the defendant save for the letter, Exhibit “E”. It is well to point out that the judgment of the learned trial Chief Justice had used Exhibit “E” to discredit the defendant’s story that the whole of the debt had been repaid. The plaintiff has the onus of proving his case in the words of Section 135 of the Evidence Act Cap. 62 (Laws of Nigeria). True enough the plaintiff had produced the agreements, Exhibits “A”    and “B”; he however admitted having received moneys from the defendant on several occasions but was unable to tell the court what these moneys amounted to so as to leave facts to the court, which on a proper appraisal, would enable the court to give him judgment. Barring Exhibit “E” therefore at the stage when it was announced that the plaintiff’s case was closed, that case left the court very much at sea and gave no certain materials on which probable facts could be founded.

The learned trial Chief Justice observed this aspect of the plaintiff’s case and indeed described him as an unsatisfactory witness. But he then proceeded to give the plaintiff judgment on the basis that the defendant did not discharge the onus of proof on him to disprove liability. If these observations were related to the contents of Exhibit “E”, we would be willing to agree with them: indeed they were not, and we are not satisfied that the learned trial Chief Justice gave the proper consideration to the effect of the plaintiff’s evidence on the entirety of the case which he had placed before the court.

By his evidence, the plaintiff obviously admitted having received a number of payments from the defendants which he described as profits and the amount of which, in any case, he did not tell the court. In view of the nature of the evidence that was the very matter in issue before the court and it does not lie with the plaintiff to decide that all the amounts paid to him were profits without telling the court what the actual amounts were. We are firmly of the view that if the evidence of the plaintiff was examined in this perspective, the learned trial Chief Justice would have come to the conclusion that the evidence of the plaintiff, apart from being unsatisfactory left no facts with the court on which the matter in issue could be resolved.

The story is different, however, with Exhibit “E” and we observe that the learned trial Chief Justice did not advert his mind to the implications of this document. He had found that Exhibit“E” was written by the defendant as a free person and voluntarily and in it as well as in the course of his evidence the defendant conceded having admitted owing the plaintiff the amount of £500 shown in Exhibit “E”. If, as indeed it happened, the court found that Exhibit “E” was the voluntary act of the defendant and as there is no evidence to show that the defendant had paid the plaintiff any moneys since Exhibit “E”, it seems to us that there is no defence to the obligation comprised in Exhibit “E” and the consequences of the law must follow.

In the end we would allow this appeal and set aside the judgment of the High Court, Kaduna, in suit No. NCH/7A/1969 including the order for costs. We make the following orders:-

1. We enter judgment for the plaintiff for the sum of £500 or N1,000.00 shown as admitted by the defendant on Exhibit “E” and this shall be the judgment of the Court.

2. We order that the defendant pay the plaintiff costs in the court below fixed at N70.

3. We order that the plaintiff shall pay the costs of this appeal fixed at N115.


(Sgd.) A. Fatayi-Williams, JUSTICE, SUPREME COURT.



MR. S. O. Adewumi, (with him, J. A. Irinoye), for Appellant.

Mr. A. O. Aluko-Olokun, for the Respondent.