IN THE FEDERAL SUPREME COURT OF NIGERIA
CITATION:  ANLR 325
ADEMOLA CHIEF JUSTICE SUPREME COURT
LEWIS JUSTICE, SUPREME COURT
MADARIKAN JUSTICE, SUPREME COURT
BORNU HOLDING CO. LTD APPELLANT
ALHAJI HASSAN BOGOCO RESPONDENT
LEWIS, JSC. (delivering the judgement of the Court): In Suit NEM/11/1969 in the High Court of the North-Eastern State the plaintiff?s writ read:
The plaintiff who resides at Potiskum claims from the defendant the sum of £45,571-3s-9d being amount owing by defendant to the plaintiff for the value of 1,255 tons of groundnuts sold and delivered by the plaintiff to the defendant during the 1965-66 groundnut season, as well as the value of 16,315 jute bags, and agency commission due to the plaintiff from the defendant for the sale of the said 1,255 tons of Groundnuts, as well as transport charges on the delivery of the said 1,255 tons of groundnuts to the defendant at Potiskum from the 15th November, 1965 to the 19th January, 1966. The defendant has refused and failed to pay the said £45,571-3s-9d to the plaintiff despite repeated demands. and his statement of claim concluded as follows:-
and the plaintiff claims-£45,571-3s-9d as follows:-
(a) Under paragraphs 3 and 4 for cost of 1,255 tons of groundnuts sold and delivered by the plaintiff to the defendant . . . . . . . .£38,543 3 9
(b) Under paragraph 5 cost of 16,315 bags 4s each sold and delivered by the plaintiff to the defendant £3,263 -
(c) Under paragraphs 6 and 8 for commission at £2 per ton on 1,255 tons of groundnuts delivered by the plaintiff to the defendant .. .. .. £2,510 -
(d) Under paragraphs 7 and 8 for transport charges on 1,255 tons of groundnuts at £1 per ton delivered by the plaintiff to the defendant . . £1,255 - Total amount claimed . . . . . . £45,57139
The defendants denied the plaintiffs claim and in particular in paragraph 3(b) of the statement of defence pleaded:-
(b) Alternatively, the defendants aver that the Tally Vouchers aforesaid were given the plaintiff in respect of groundnuts bought by the defendants from several small farmers upon the plaintiffs instructions for which he was to receive an agreed commission.
The defendants also counterclaimed for £1,861-1s-7d as being the balance outstanding on monies advanced to the plaintiff for the purchase of groundnuts in respect of a different season-the 1967-1968 groundnut season-to the one in respect of which the plaintiffs claim was based.
On the 19th March, 1970, Hague, Acting J. sitting in Maiduguri dismissed the counter-claim by the defendants and gave judgement for the plaintiff for his claim of £45,571-3s-9d together with costs of £315, and against that decision the defendants have appealed to this Court.
It was not disputed between the parties that the plaintiff was a trader in groundnuts and that the defendants were a licensed buying agent of the Northern Marketing Board. It was also in fact not disputed that advances were made by the defendants to the plaintiff to enable the plaintiff to purchase groundnuts from farmers and deliver them to the defendants and that commission due to the plaintiff on such purchases was calculated at the end of the season. Moreover in respect of the claim for 1,255 tons of groundnuts in the 1965-66 groundnut season, it was not disputed that this procedure was not adopted, but what was in dispute was whether the plaintiff had, as he claimed, purchased the 1,255 tons with his own money and sold and delivered them to the defendants for £30-14s-3d per ton, or whether, as the defendants claimed, the plaintiff brought farmers to the defendants who paid the farmers direct for their groundnuts and that on those transactions the plaintiff was entitled to commission of 10s a ton on the 1,255 tons, namely £627-10s-Od.
The learned trial judge in reviewing the evidence given on behalf of the defendants said as to the defendants? ease that there was an agreement to pay 10s commission in respect of the 1,255 tons as follows:-
Subsequently to the execution of ex. D the 1st D.W. said an oral agreement was concluded with the plaintiff. This provided that 10s per ton commission would be paid to plaintiff in respect of the tonnage delivered by buyers were paid directly by the 1st D.W. and 1st D.W. says he issued Ex. Al to A4 as evidence that plaintiff had earned his 10s per ton commission. 1st D.W. used a duplicate book in paying the small farmers who had made deliveries. It is unfortunate that he had left the duplicate book in Potiskum during the hearing.
In support of their version of the oral agreement the defence called Mustapha John Holt, who had operated at the same place and on the same terms vis-a-vis the defendant company.
This witness said Haruna had, towards the end of the 1965-66 season come to him and told him to go round the villagers and tell the farmers to bring their grounds to him (witness). The 1st D.W. undertook to pay witness 10s per ton commission and to settle with the farmer for their produce.
In cross-examination this witness was more specific and said the arrangement for 10s per ton was made in March or April 1966. This cannot be correct, as plaintiffs deliveries, which are alleged to attract the 10s commission began on 15th November, 1965 and ended on 19th January, 1966; i.e. at least six weeks before the agreement was said to have been made. This discrepancy and 1st D.W.?s omission to produce his duplicate book leads me to the definite conclusion that such an agreement never existed.
In this I derive support from Mustaphas evidence that his deliveries were reported to him at 900 tons. Yet the companys assistant accountant 4th D.W. says his commission in the relevant period was £218-15s-0d in respect of 118 tons purchased. Even more significant is the entry in plaintiffs account with the defendant company on 7th May, 1966 (ex. O page 2 right hand). This shows an item of £627-10s-0d credited to plaintiff i.e. 1,255 tons x 10s commission and it is described as deferred commission. This in its ordinary meaning is postponed or put off to another time, but 4th D.W. said it indicated, a special commission for work done on behalf of the company. Surely deferred is more likely to indicate that part of an allowance has previously been withheld, and I observe across the page an item on the same date entered as deferred transport allowance.
Some of the items entered on 10th May, 19
66 on page 2 (right side) are obscure. Having credited plaintiff with £627-10s-0d deferred commission this item is cancelled lower down by the same amount entered to error in posting albeit on the wrong column of the account, The status quo is then restored by two items for transport of £528-1s-3d and £99-8s-9d which total £627-I0s-0d. The latter of these sums is also marked error in posting, but the effect was to show the plaintiffs account as balanced with the exception of a payment to the plaintiff of £533-9s-3d, the other items at the foot of the account are to put them at their lowest extremely dubious and apparently unaudited.
For the reasons stated I do not accept the proposition contained in para. 3(b) of the defence namely that Exs. A1 to A4, merely represent commmission earned by the plaintiff.
Immediately thereafter he stated in the judgement, The plaintiff is entitled to judgement on his claim and then turned in the judgement to deal with and reject the defendants? counter-claim.
Now Chief Williams on behalf of the defendants submitted so far as the learned trial judges finding on the defendants? case was concerned that he made a number of errors namely:-
(a) that he wrongly in the passage from his judgement which we have quoted examined on his own the exhibit O, the account book of the defendants, and came to findings in regard to the entries therein on which no evidence was offered;
(b) that he wrongly relied on the failure of the 1st defence witness to produce his duplicate book; and
(c) that he wrongly relied on the evidence of the 2nd defendants? witness-Mustapha John Holt-as disproving defendants? case.
So far as the question of the account book is concerned we are in no doubt that the analysis that the learned trial judge made of the entries in exhibit O went far beyond the actual questions asked in respect of it of the 4th defence witness, the Assistant Accountant of the defendants, who kept exhibit O. In Queen v. Wilcox (1961) All NLR 631 the Federal Supreme Court at page 633 said:-
What has caused us some concern in this appeal is the learned Judges examination of Exhibit M. This is a Book kept by the Bank in which all cheques emanating from the Treasury are entered, and evidence was given that the entry concerning the cheque in question had been partly erased. There was no suggestion by the prosecution what the words were. The learned Judge, however, examined the erasure by means of a magnifying glass outside the court and said in his judgement that the name Smyth? was written there and other letters erased leaving only the letters S and T. The independent examination of exhibits by a Court was considered in Muhammadu Duriminiya v. Commissioner of Police (1961) NRNLR 70, in which the Court said this:-
The magistrate examined the books, but apparently not in court-for the record does not show that he observed or was shown any entries in court, except the few we have mentioned-and in examining them out of court, as appears from his judgement, he observed numerous points which ought to have been brought out in court at the hearing but were not. In doing this, the magistrate was not trying the case, he was investigating it.
A trial is not an investigation, and investigation is not the function of a court. A trial is the public demonstration and testing before a court of the cases of the contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested. What was demonstrated in court at this trial failed to support the prosecution case, and the magistrate should have dismissed the case. It was no part of his duty to do cloistered justice by making an inquiry into the case outside court not even by the examination of documents which were evidence, when the documents had not been examined in court and the magistrates examination disclosed things that had not been brought out and exposed to test in court, or were not things that, at least must have been noticed in court.
We respectfully agree with these observations and consider that the course pursued by the learned Judge in regard to Exhibit M was not correct. and in Owe v. Oshinbajo (1965) 1 All NLR 72 we said at page 75:-
The trial judge, however, without referring what he thought was a discrepancy to the parties for their explanation, took upon himself on his own examination and inspection of the plans. With respect we think it was a mistake on the part of the learned trial judge to take that course on his own accord and to give judgement upon matters on which the parties or their counsel were not heard or on which there was no evidence before him.
In the case of The United Africa Company Ltd. v. The Commissioner of Police (WACA 2889-2924, July and October 1948, cyclostyled WACA Reports, p.72) the West African Court of Appeal (Sir Henry Blackall P.) in similar circumstances made the following observations:-
At the hearing of the appeals it was submitted on behalf of the appellant company that while the company was admittedly liable for the acts of its servants, the learned Judge should not have taken upon himself to consider the entries which so largely contributed to his conclusions without giving the company an opportunity of being heard, the issue as to the policy of the company never having been an issue during the hearing. The appellant company therefore sought leave to call additional evidence on these matters.
The West African Court of Appeal thereafter granted leave in that case to call additional evidence and observed further as follows:-
It is entirely contrary to the usual practice that the court should after the close of the trial, and in the absence of either party, raise an entirely fresh issue based upon the examination of certain documents tendered for another purpose, and, without summoning the parties again before him, proceed to determine this issue for the purpose of assessing the penalties to be imposed. When as a result of further consideration of the evidence the judge reached a conclusion which would of necessity affect his view of the gravity of the offence, and consequently of the appropriate penalty, he should in our view have indicated to the appellants the nature of the issue thus raised and afforded them an opportunity of giving further evidence in relation thereto.
With these observations we respectfully agree and would point out that where it is necessary that a point or points arising for determination in a case should be further clarified by evidence after the close of the trial, it is the duty of the court trying the case to invite the parties to supply such evidence or explain such point or points and it is wrong for the court in these circumstances to substitute its own view for matters on which there should be, and there was no, evidence before the court.
Mr. Perssu for the plaintiff sought to distinguish those cases on the basis that exhibit O was tendered by the defendants and as questions were asked in regard to it the learned trial judge was entitled to examine it as a whole. We agree that the learned trial judge was certainly entitled to examine it as a whole but he should not, as he did, have relied on his own observations from an examination of exhibit O to decide matters which had not emerged from the actual evidence given before him without either first putting the points to the witnesses or inviting counsel to comment on them if they so wished. We do not think that it makes any difference that exhibit O was put in by the defendants. The learned trial judge was in error in dealing with it in the way that he did.
We think also that when the learned trial judge said:-
1st D.W. used a duplicate book in paying the small farmers, who had made deliveries. It is unfortunate that he had left the duplicate book in Potiskum during the hearing .This discrepancy and 1st D.W.?s omission to produce his duplicate book leads me to the definite conclusion that such an agreement never existed., he was also in error as the witness concerned had been brought to Maiduguri from Potiskum, a town well over 100 miles away and had not been told the duplicate book was required and indeed was only asked about it in cross-examination so if the learned trial judge thought it was important to the determination of the case he should have given the defendants the opportunity of an adjournment in order to enable the witness to go off to Potiskum and get the duplicate book.
Finally, so far as the evidence of Mustapha John Holt was concerned we do not see, because that witness was told in March and April that he would be given 10s commission on groundnuts purchased by the defendants from farmers whom he arranged to bring groundnuts to them, that it was necessarily a discrepancy that the defendants said the plaintiff was offered this arrangement in November.
In so far as the defendants? case was concerned we think therefore that the appellants are right in their contention that the learned trial judge relied on matters which he should not have done in the way he did to coming to the conclusion that he did not accept the defendants case.
However the matter does not end there as Chief Williams also complains that after dealing with the defendants? case the learned trial judge then said The plaintiff is entitled to judgement on his claim. We agree with Chief Williams that it is by no means follows that because the defendants? case is rejected the plaintiff is entitled to judgement on his claim. A plaintiff is only entitled to judgement if a trial Judge believes and accepts his evidence and if such evidence supports his case and here the learned trial judge would have had to have believed that the plaintiff used his own money to pay the farmers in respect of the 1,255 tons of groundnuts on which he was claiming £30-14s-3d per ton at a time when he had a loan from the defendants for £400 (Exhibit R). Here the learned trial judge did not make any finding in regard to the plaintiffs evidence and merely because he rejected the defendants? evidence did not entitle him to find for the plaintiff.
In all therefore we have come to the conclusion that the learned trial judge did not satisfactorily deal with the issues before him and was in error in the ways that we have indicated. We have therefore decided that the only fair course to adopt is to send this matter back for rehearing.
We accordingly set aside the judgement allowing the plaintiffs claim for £45,571-3s-9d together with the costs of £315 and dismissing the defendants? counter-claim. We do order that the matter be reheard before another judge of the High Court of the North-Eastern State. The costs of the hearing in the High Court shall abide the outcome of the rehearing. The defendants/appellants are entitled to their costs of this appeal which we assess as 43 guineas.
Appeal allowed: Judgement of High Court set aside: Rehearing before another judge ordered.
Chief Williams for the Defendants/Appellants.
Agbamuche (with him, Pessu) for the Plaintiff/Respondent.