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
hold.
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
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