Whether failure to respond to a business letter amounts to an admission

AROCOM GLOBAL INVESTMENT LIMITED v. UNITED PARCEL SERVICE LIMITED

CITATION: (2021) LPELR-52891(CA)

In the Court of Appeal

In the Ibadan Judicial Division

Holden at Ibadan

ON MONDAY, 8TH FEBRUARY, 2021

Suit No: CA/IB/8/2017

 

Before Their Lordships:

JIMI OLUKAYODE BADA

Justice, Court of Appeal

HARUNA SIMON TSAMMANI

Justice, Court of Appeal

FOLASADE AYODEJI OJO

Justice, Court of Appeal

Between

 

AROCOM GLOBAL INVESTMENT LIMITED – Appellant(s)

 

And

UNITED PARCEL SERVICE LIMITED

– Respondent(s)

 

LEADING JUDGMENT DELIVERED BY FOLASADE AYODEJI OJO, J.C.A.

 

The Respondent was a corporate entity carrying on the business of courier services and warehousing of goods which services it renders to the Appellant regularly. The services were usually on credit for which payment was made monthly.Between February 2012 and January 2013, the Respondent, acting on the Appellant’s instruction, carried out on its behalf shipments of letters and document to various destinations in Nigeria. As usual, it was on credit for which invoices and waybills were sent to the Appellant monthly. The total cost for the shipments done on behalf of the Appellant by the Respondent for this period was a total sum of N13,750,468.75 (Thirteen million seven hundred and fifty thousand, four hundred sixty- eight Naira and seventy-five kobo) which the Appellant failed to pay despite repeated demand.

The Appellant admitted it had been a credit customer of the Respondent for about ten years and had always paid its bills for all services rendered to it by the Respondent. That the services of the Respondent were also extended to Arocom Foundation since 2011, which paid regularly for the services rendered to it. The Appellant denied receipt of the disputed invoices and waybills allegedly sent to her. The Appellant alleged fraud in the invoices relied upon by the Respondent and denied indebtedness.

The Respondent as Claimant before Ogun State High Court of Justice, Abeokuta Judicial Division instituted this action. After hearing the case, the trial Courtfound in favour of the Respondent. Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

1) Whether the bundle of Exhibits UPS 1-14, UPS A1 – 11, UPS B1 – 4, UPS C1 – 8, UPS D1 – 19, UPS AE 1 – 2, UPS F1 – 2, UPS G1, UPS H1, UPS 11, UPS J1 and UPS K1 were properly admitted in evidence by the trial Court.

2) Whether the trial Court was right in holding that Exhibits UPS L, UPS M, UPS N and UPS O amounted to an admission of liability for the sum of N13,750,468.75 by the Appellant.

3) Whether the trial Court was right to adjudge the Appellant as the rightful Defendant in the suit at the trial Court.

4) Whether failure to produce documents purportedly in the custody of the Respondent after service of notice to produce by the Appellant amounted to admission of fact stated in these documents.

 

APPELLANT’S SUBMISSIONS

Arguing issue 1, counsel to the Appellant submitted that the invoices submitted by the Respondent were computer generated documents under Section 84(1) of the Evidence Act 2011 and the conditions for their admissibility were not met. Therefore, the High Court erred in law when it admitted them in evidence. He cited the case of KUBOR VS. DICKSON (2013) 26 WRN 15 to support his submission.

He submitted further that the trial Court was wrong when it distinguished the case of KUBOR VS. DICKSON (2013) 26 WRN 15 from the case at hand and that by the combined provisions of Sections 84 and 258 of the Evidence Act 2011, the Exhibits in question are not admissible in law.

Arguing issue 2, counsel submitted that notwithstanding, Exhibits UPS L, UPS M, UPS N and UPS O (Letters of demand dated 17/12/2012, 11/02/2013 and 26/03/2013 as well as Appellant’s letter requesting for time to pay dated 22/08/2012), the Appellant’s consistent position was that she did not owe the Respondent. He stated Exhibit “UPS N” was written in errorand that Exhibit “UPS O” (the letter of demand dated 26/03/2013) was not served on the Appellant. He submitted that the trial Court was in error when it found that Exhibit “UPS N” (Appellant’s letter dated 22/08/2012 in which it requested for more time to pay) amounted to an admission and that Exhibits UPS L, UPS M and UPS O are letters of demand made to the Appellant. He relied on NDULUE VS. OJIAKOR (2013) 30 WRN 27 at 53 LINES 25 – 35, YUSUF VS. OMOKANYE (2013) 11 WRN 112 at lines 5 – 10 and ABDULGANIYU VS. ADEKEYE (2013) 6 WRN 107 at 127 line 40.He argued further that Exhibit UPS N did not disclose the outstanding debt and was not connected to the letters of demand. He submitted that the Respondent failed to prove the existence of the debt and did not prove his case but only relied on Appellant’s own weakness to establish its case. He cited OKAFOR VS. A.P. (NIG.) LTD. (1996) 5 NWLR (Pt. 45) 674 at 690 Paragraphs A – F andPEREVA VS. MOTOR AND GENERAL INSURANCE CO. LTD (1971) 2 ALL NLR 261.

On issue 3, counsel argued that all transactions with the Respondent between August, 2011 and March, 2013 were with AROCOM FOUNDATION and which services were duly paid for. He submitted that both the Appellant and AROCOM FOUNDATION know nothing about the letter and/or documents the subject of the pleaded invoices and waybills relied on by the Respondents. Appellant’s counsel further submitted that neither the Appellant nor AROCOM FOUNDATION is liable to the Respondent in the sum claimed or any sum at all. He argued that the facts contained in Exhibits D1, D2 and D4 were not denied or disputed by the Respondent. This he submitted is tantamount to admission. He cited the cases of NDULUE VS. OJIAKOR (2013) 30 WRN 27; YUSUF VS. OMOKANYE (2013) 11 WRN 112 and ABDULGANIYU VS. ADEKEYE (2013) 6 WRN 107.

On issue 4, counsel argued that the Respondent did not honour the notice to produce served on her and urged the Courtto invoke the provision of Section 167 (e) of the Evidence Act 2011 against her. He further urged us to hold that failure to comply with the Notice to produce entitled the Appellant to adduce secondary evidence. He cited Section 89 (a) (1) and 90 (1) (a) of the Evidence Act 2011,BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941) 1 AT 236 PARAS A-C, 262-263 PARAS H-A; UBN PLC VS. IDRISU (1999) 7 NWLR (PT. 609) 105 and GBADAMOSI VS. KABO TRAVELS LTD. (2000) 8 NWLR (PT. 668) 243.

 

RESPONDENT’S SUBMISSIONS

On issue 1, counsel to the Respondent arguedthat the bundle of invoices were counterpart copies earlier served on the Appellant and on which Section 84 of the Evidence Act does not apply. Counsel argued that the Respondent pleaded in the Amended Statement of Claim that she will rely on the copies of the invoices at the trial. Counsel submitted that the invoices were properly admitted in evidence by virtue of Section 86(2) & (4) of the Evidence Act. He cited JACOB VS. ATTORNEY-GENERAL OF AKWA IBOM STATE (2002) FWLR (PT. 86) 578, AKANO VS. ILORIN EMIRATE COUNCIL (2001) FWLR (PT. 42) 59 at 80; and AIYEAGBU VS.OZOR (1999) 4 NWLR (PT. 598) 184. 

On issue 2, counsel to the Respondent submitted that DW1 who testified on behalf of the Appellant did not deny the existence of the various letters of demand. He also did not deny the existence of Exhibit UPS N which is the Appellant’s letter acknowledging its indebtedness and request for more time to pay but only said it was written in error.Counsel also argued that Exhibits “UPS N” “UPS M” “UPS O” and “UPS P” clearly show that the outstanding debt was N13,750,468.75k. Counsel cited CAPPA & D’ALBERTO LTD. VS. AKINTILO (2003) NWLR (Pt. 824) 49 at 69, IFEANYI CHUKWU T.I.U LTD. VS. O.C.B. LTD. (2015) 17 NWLR 1487 and Section 20 of the Evidence Act 2011.

On issue 3, Counsel submitted that the Appellant did not prove that there was privity of contract between AROCOM FOUNDATION and the Respondent in respect of the debt and cited THOMAS CHUKWUMA MAKWE VS. CHIEF OBAMA NWUKOR (2001) 32 WRN 1 (SC) .

On issue 4, Respondent’s counsel submitted that the waybills are in tripartite copies with the original in the custody of the Appellant. That since the original was with the Appellant, there was nothing for the Respondent to produce at the trial. He cited YUSUF VS. OBASANJO (2001) FWLR(PT. 294) 387 & 476 PARAS B-F and UBN LTD. VS. IDRISU (1997) 7 NWLR (PT. 609) AT 118-119 PARAGRAPH H to submit that a person, on whom notice is served to produce documents is not obliged to produce same or tender the documents named in the notice. In such situation, the party that issued the notice, once satisfied that the opponent has failed to produce the document, may tender secondary evidence. He maintained the Appellant was entitled to tender secondary evidence if he wished. Counsel cited Section 89 of the Evidence Act 2011.

 

RESOLUTION OF ISSUES

On issue 1, the Court stated that there was nothing on the record to qualify the bundle of waybills and invoices in contention as computer–generated documents. Rather, they were counterpart copies of the documents which were served on the Appellant and by Section 86 of the Evidence Act, 2011, such counterparts are admissible as primary evidence. As such, the documents did not fall within the purview of Section 84 of the Evidence Act, 2011 but rather within the purview of Section 86 of the Evidence Act, 2011. Going further, the Court held that the case of KUBOR VS DICKSON did not apply to the instant case because in KUBOR VS DICKSON, what was in contention was online print-outs of a newspaper edition and some INEC documents requiring certification and compliance with Section 84 of the Evidence Act 2011. However, in the instant appeal, the documents in contention were original copies of invoices issued to the Appellant and as such, they were properly admitted in evidence under Section 86 (2) and (4) of the Evidence Act 2011.

On issue 2, the Court held that the Appellant had a duty to respond to the Respondent’s letter of demand if it had reason to dispute their content. The Appellant’s refusal to respond to the letter amounted to an admission of the debt of N13,749,628.75k stated in the letter. See NAGEBU& CO. NIG. LTD. VS. UNITY BANK PLC. (2014) 7 NWLR (Pt. 1405) 42 at 81, KARIMAT GLOBAL TRADE LINKS LTD. & ANOR VS. UNITY BANK PLC (2014) LPELR – 23986 (CA) and INTIME CONNECTION LTD. VS. ICHIE (2009) LPELR – 8772 at page 20 Paras D – G.

On issue 3, the Court stated that there was nothing on record to show that the contract of shipment was between the Respondent and AROCOM FOUNDATION. The Court then considered Exhibits D1 – D4 and held that they did not disclose any privity of contract involving the Respondent. They were communication between the Appellant and AROCOM FOUNDATION (the Appellant’s Subsidiary Company) and as such held no probative value.

On issue 4, the Court held that the circumstances of the case allowed the Appellant to tender secondary evidence of the waybills it requested the Respondent to produce. If the Appellant was interested in making use of the waybills and other documents, he had the option of tendering the secondary evidence which he failed to do. Failure of the Respondent to produce documents purportedly in its custody after service of notice to produce by the Appellants does not amount to admission of the facts contained in the documents. See BUHARI & ANOR. VS. OBASANJO & ORS. (2005) LPELR–815 (SC), EZEJIOBI VS. EBEGU (2016) LPELR–40507 (CA), Sections 89 (a) and 90 (1) (a) of the Evidence Act 2011.

 

HELD

The Court held that the appeal lacked merit and dismissed same.

 

Appearances:

OLAIDE ARO

For Appellant(s)

1. S. MAKINDE

For Respondent(s)

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