A. U. Amadi Vs Thomas Aplin & Co. Ltd (1972)
LawGlobal-Hub Lead Judgment Report
UDOMA, J.S.C.
This appeal raises two points of considerable importance one of practice and procedure and the other of the construction of a written contract. The appeal is brought by the plaintiff in suit No. P/99/63 and defendant in suit No. P/5/64 respectively (consolidated) of the Port Harcourt Judicial Division of the High Court of the former Eastern Region holden at Port Harcourt. It is from the judgment of W.J. Palmer J. dismissing the claim of the plaintiff against the defendant company, herein respondent, in the former suit and, in the latter suit, entering judgment in favour of the defendant company in the sum of 6931(pounds) with inclusive costs of 60 guineas.
In suit No. P/99/63 the plaintiff’s claim against the defendant company was for the sum of 700(pounds) being “money had and received by the defendant company for the use of the plaintiff, and for a consideration which has failed, and 3300(pounds) damages”; and in suit No. P/5/1964 the claim of the defendant company as plaintiff was endorsed on its writ of summons in the following terms:
“The plaintiff claims from the defendant the sum of 818121(pounds) as per account stated.”
In this judgment the plaintiff/appellant in suit No. P/99/63 who is also defendant/appellant in suit No. P/5/64 will hereinafter be referred to as plaintiff simpliciter, and the defendant/company/respondent in suit No. P/99/63 which is also plaintiff/company/respondent in suit No. P/5/64 will also be referred to as the defendant.
For the proper appreciation of the issues involved in the appeal and the complaints by the plaintiff against the judgment appealed from, we consider it necessary to set out herein briefly in so far as the same is relevant to this appeal, the sequence of events relative to the conduct of the trial.
The plaintiff’s writ of summons in suit No. P/99/63 which was specially endorsed was filed on 28th November, 1963. On 17th January, 1964, the defendant as plaintiff in suit No. P/5/64 also filed its writ of summons attached to which were detailed particulars of account allegedly relating to 700 bales of stockfish, the subject matter of the dispute between the plaintiff and the defendant in both suits.
On 17th January, 1964, in obedience to an order of court, the defendant filed its defence to the particulars of claim specially endorsed on the writ of summons in suit No. P/99/63 which, but for a slight amendment, counsel for the plaintiff had intimated to the court were adequate for the purpose of his case and should be treated as his statement of claim, and were indeed in fact so treated.
In suit No. P/5/64, pleadings having been ordered were on 3rd January, 1964, filed and duly delivered. In the meantime counsel for the plaintiff was appointed magistrate and another counsel took over the cases. Before either of the cases came up for trial the new counsel for the plaintiff applied by motion on notice under Order XXXIV of the High Court Rules for leave to amend the plaintiff’s statement of claim filed in suit No. P/99/63. The application, to which were attached particulars of the proposed amendment, was filed on 30th May, 1965. It was supported by an affidavit sworn to by counsel for the plaintiff and contained the undermentioned pertinent statement namely:
“That upon checking through the records and the document it was clear that the defendant did not supply the goods ordered by the plaintiff;
And that it was necessary to amend the statement of claim in that respect.
The motion was fixed for hearing on 3rd June, 1965, that being the date already fixed for the trial of the main case, that is, suit No. P/99/63, the order fixing that as the date for the trial of the case having been made on 5th April, 1965. So far no date had been fixed for the trial of suit No. P/5/64 the last order therein having been made also on 5th April, 1965 to the effect that the plaintiff therein “serve the statement of account on defendant’s counsel”.
Then on 3rd June, 1965 when both the motion and the suit No. P/99/63 came up for hearing, the notes of the proceedings made by the learned trial judge read as follows:
“Suits Nos. P/99/63 & P/5/64:
Between:
A. U. Amadi Plaintiff
And
Thomas Aplin & Co. Ltd. Defendant
Thomas Aplin & Co. Ltd Plaintiff
And
A. U. Amadi Defendant
These two suits are consolidated.
(Parties are referred to as in P/99/63).
Plaintiff in person.
Oputa for Defendant.
(Telegram from plaintiff’s counsel is received asking for adjournment-refused.)
Plaintiff’s motion to amend the pleadings cannot be allowed, at this stage. Pleadings in both suits were filed early in 1964. On 5th April, 1965 the cases were mentioned and fixed for hearing today with the consent of both counsel. On 20th May, 1965, plaintiff filed a motion to amend his pleadings and thereby alter the whole nature of the case. This is quite unreasonable at this stage. Motion dismissed.”
Thereafter the plaintiff was called upon to prove his case. The learned trial judge then proceeded with the trial of the two suits both whereof he had consolidated suo motu. The plaintiff gave evidence and called one witness. In his evidence the plaintiff in effect repeated the contents of the contract between him and the defendant as contained in the document which was admitted and marked exhibit 1 in the proceedings. He further testified that contrary to the terms of the contract, exhibit 1,
“The fish arrived in August. The first consignment was 150 bales not 200. The second consignment was 250 not 200. The marks on the bales were not mine. I refused the bales as they were not mine. The defendant cleared the goods.”
The defendant called only one witness-John Ekpiken (P.W.1), its district manager who, in the course of his testimony, tendered certain documents among which were the shipping documents, exhibits 16, 17 and 18 in the proceedings, showing the dates when the three sets of bales of stockfish covered by the contract, exhibit 1, were shipped in European ports for Port Harcourt. He admitted the terms of the contract, exhibit 1, as the agreement between the plaintiff and the defendant. He also admitted that the bales of stockfish arrived in Port Harcourt in August 1965 and in the quantities testified to by the plaintiff. He, however, denied that the bales were to bear the plaintiff’s marks and that the stockfish was to have been delivered in Port Harcourt in June and before the end of July. He maintained that, according to the contract, exhibit 1, the word “shipment” meant shipment of the stockfish in European ports and not delivery at Port Harcourt as alleged by the plaintiff in suit No. P/99/63.
The learned trial judge delivered his judgment the same day which he concluded with the following words:
“The plaintiff’s claim in 99/63 is dismissed. In 5/64, the company succeeds but 312521 (pounds) is deducted from the claim leaving 693100 (pounds). The net result will be judgment for Thomas Aplin & Co. Ltd. (plaintiff in suit No. P/5/64) for 693100 (pounds) against the defendant in that suit (A.V. Amadi). Costs 60 guineas inclusive (to cover both suits).”
This appeal is against that judgment. The first ground of appeal argued before this Court on behalf of the plaintiff is to the effect that the learned trial judge was wrong in law to have refused to entertain the plaintiff’s motion for leave to amend his statement of claim and also at the same time to have dismissed the motion without hearing the plaintiff, and that such dismissal of the motion has occasioned a miscarriage of justice as it was prejudicial to the plaintiff’s presentation of his case.
In support of this ground, Alhaji Rasaq, learned counsel for the plaintiff, submitted firstly that in refusing to entertain the application to amend the statement of claim at that stage of the proceedings, the learned trial judge exercised his discretion on wrong principles and acted contrary to the provisions of Order XXXIV of the High Court Rules; and secondly that by dismissing the motion without hearing the plaintiff at all, the learned trial judge acted arbitrarily and contrary to fundamental principles of justice; and that being so, the judgment of the learned trial judge cannot be sustained and should be set aside.
Mr Ariori, learned counsel for the defendant, was only prepared to go as far as to say that it was “undesirable” that the learned trial judge should have dismissed the plaintiff’s motion without hearing arguments in support thereof, but contended that in the circumstances of the case on appeal the plaintiff was in no way prejudiced because the facts sought to have been pleaded in paragraphs 5A, 6A and 6B of the plaintiff’s proposed amended statement of claim, which was attached to the motion, had already been pleaded in the plaintiff’s statement of defence in suit No. P/5/64. Learned counsel further contended that since the learned trial judge allowed evidence to be adduced in respect of those facts at the trial of the consolidated suits and also gave consideration to the same in his judgment there could not have been any miscarriage of justice. It was also submitted that in any case it was a matter within the discretion of the learned trial judge either to grant or refuse leave to amend any proceedings and that the burden that that discretion was not judicially exercised in the present case, which is upon the plaintiff, has not been discharged.
We do not think that the submissions of the learned counsel for the defendant are particularly impressive and convincing, nor do we think that they can bear examination. Indeed, it is correct that the facts sought to be pleaded in the proposed amended statement of claim were in fact already pleaded in the statement of defence in suit No. P/5/64. That being so, one would have thought that should have been a strong enough reason for the learned trial judge to have heard the application on its merits and to have granted it. The granting of such an application would even have become a more formality. In any case, this particular submission was not the reason advanced by the learned trial judge in support of his order dismissing the motion.
In dealing with the motion the learned trial judge said in part:
“On 20th May, 1965 plaintiff filed a motion to amend his pleadings and thereby alter the whole nature of the case! This is quite unreasonable at this stage. Motion dismissed.”
It should also be remembered that at the time of filing the motion suit No. F/99/63 was a separate and independent action. It was neither consolidated with nor was there any indication that it would be so consolidated and tried together with suit No. P/5/64. The two suits were consolidated suo motu and tried together by the learned trial judge, and then without any proof that his order of 5th April, 1965 that the statement of account in respect of suit No. P/5/64 be served on the counsel for the plaintiff herein had been duly complied with. The learned counsel, who appeared for the defendant is not recorded as having said anything at all as regards the motion and the consolidation of the two suits.
In our view this matter is more serious than the learned counsel for the defendant tended to treat it. The motion for leave to amend the plaintiff’s statement of claim in suit No. P/99/63 was on notice. It was not opposed. It was brought under Order XXXIV of the High Court Rules which provides:
“The court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.”
For the proper construction and application of the above provisions to the facts and circumstances of the present case on appeal, it is essential that the issues in controversy between the plaintiff and the defendant in suit No. P/99/63 be fully appreciated since the learned trial judge had considered them in his judgment.The case of the plaintiff was that by a contract in writing contained in a document No. PH/1806 dated 30th May, 1963 which was made at Port Harcourt between the plaintiff and the defendant, the plaintiff agreed to buy from the defendant and the defendant agreed to sell to the plaintiff in Port Harcourt 700 bales of Norwegian stockfish in three separate vessels the first of which vessels to arrive in Port Harcourt in June, the second and third vessels before the end of July, 1963; that in consideration of the agreement and sale the plaintiff paid a deposit of 3700(pounds); that the first and second shipments respectively to arrive in Port Harcourt should consist of 200 bales each, and the third shipment of 300 bales; that each of the bales should bear the plaintiff’s mark “U.G.O.”; that in June and July 1963 the plaintiff did not receive any of the stockfish, and as a result the plaintiff requested the defendant to reduce the price per bale of the stockfish failing which the contract between them to be considered rescinded by him. According to the plaintiff, in August 1963, the defendant informed him that the stockfish had arrived, but that, on inspection, he found that the bales did not bear his mark “U.G.O.”; that he therefore treated the stockfish as not belonging to him, having regard to the terms of their contract. It was also the plaintiff’s case that as the fish did not arrive at the time stipulated in the contract and according to the quantities specified also in the contract, in that the first instalment to arrive consisted of 150 bales instead of 200, and the second of 250 instead of 200 bales, he therefore rejected the stockfish and eventually brought this action.
The substance of the plaintiff’s case was admitted by the defendant. The questions in controversy and for determination by the learned trial judge were:
(1) Whether in terms of the contract, exhibit 1, the stockfish was to arrive in Port Harcourt in June and before the end of July as alleged by the plaintiff or only to be shipped in a port in Europe in June and before the end of July but to arrive in Port Harcourt at any time thereafter not specified in the contract as alleged by the defendant.
(2) Whether the bales were to bear the plaintiff’s trade marks “U.G.O.”
(3) Whether the stock fish having failed to arrive in the months of June and July 1963 assuming that the allegation of the plaintiff was correct the plaintiff was entitled to repudiate the contract, and
(4) Whether the stockfish not having been delivered according to the specified agreed quantities the plaintiff was entitled to reject it and rescind the contract.
In the original statement of claim filed these points were not sufficiently brought out. The plaintiff therefore applied by motion, on notice, for leave to amend so as to plead the facts in his statement of claim relating to these questions to enable issues thereon to be properly joined.
It appears that the amendment sought was necessary and proper such as the court was bound to make as, in the language of the provisions of Order XXXIV, “all such amendments as may be necessary and proper for the purpose of determining in the existing suit the real questions or question in controversy between the parties shall be so made.” (See England v. Palmer 14 W. A. C. A. 659; Oguntimeyin v. Gubere [1964] 1 All N.L.R.176. In the latter case amendment of a writ of summons and statement of claim was allowed even at the close of the trial but before judgment was delivered.) There is also the statement by Bramwell L.J. in Tiddesley v.Harper 10 Ch. D. 396 at p. 397 in favour of giving leave to amend a statement of claim however late the proposed amendment unless where the applicant is acting mala fide or where by his blunder he has done some injury to the respondent which cannot be compensated for by costs or otherwise.
Furthermore, the high-handed manner in which the learned trial judge dealt with the application by dismissing it summarily without hearing the plaintiff at all was, in our view, a denial to the plaintiff of his right to be heard, a direct infringement of the fundamental maxim audi alteram partem which, in effect, is a denial of a fair trial. We are satisfied that the learned trial judge erred in law in refusing to entertain the application for leave to amend the plaintiff’s statement of claim, and this error has been aggravated by his order dismissing the application summarily and has certainly occasioned a miscarriage of justice. This ground of appeal accordingly succeeds and would alone have been sufficient to dispose of this appeal but for the fact that there are other grounds of complaint by the plaintiff. These concern the interpretation of the contract by the learned trial judge and the right of a buyer in the event of a failure on the part of a seller of goods to deliver quantities specified in a written contract and within the times also therein stipulated both of which were dealt with by the learned trial judge in his judgment.
As already stated the plaintiff has complained that:
(1) The learned trial judge misconstrued the document No. PHI 1806 dated 30th May, 1964, exhibit 1, the written contract between him and the defendant by interpreting shipment therein in accordance with the meaning ascribed to the word in Stroud’s Judicial Dictionary as meaning “place of shipment” in Europe; and
(2) That the learned trial judge wrongly held that, quite independently of the time of the arrival of the stockfish in Port Harcourt, the plaintiff was not entitled to reject the bales of stockfish even though wrong quantities were delivered to the plaintiff contrary to the contract between the parties.
Now the contract between the plaintiff and the defendant is contained in exhibit 1, which reads thus:
“Norwegian Stockfish.
700 bales.
In bales of 45 kilos nett.
On three separate vessels, first vessel in June, second and third vessels before end of July. First shipment-100 bales, 30/50, 50 bales, 40/60 and 50 bales, 50/70. Second shipment-100 bales, 30/50, 50 bales, 40/60 and 50 bales, 50/70. Third shipment-100 bales, 40/60, 100 bales, 50/70, and 100 bales, 30/50.
Port Harcourt.
280s per bale, C.I.F. Port Harcourt nett.
Sight draft through United Bank for Africa Ltd., Aggrey Road, Port Harcourt with bank charges on buyers’ account but no interest clause.
W.P.A. and War + t.p.n.d.
300 bales Round Cod. 50/50
200 bales Round Cod. 40/60
200 bales Round Cod. 50/70
Messrs. A.U. Amadi,
No. 11 New Lock-up Shop,
Port Harcourt, Nigeria.
70000(pounds)”
The learned trial judge construed “shipment” in exhibit 1 as referable only to the word “ship” and as qualifying the phrases “in June” and “second and third before the end of July” and thereby transposing the word shipment from the second sentence to the first sentence of the contract. We do not think that this is the correct approach to the document, exhibit 1. We think that the words of the contract were very carefully chosen. The first sentence: “On three separate vessels, first vessel in June, second and third vessels before the end of July”, should be given its proper and ordinary meaning. It is not without significance that the sentence was not constructed to read: “On three separate shipments, first shipment in June, second and third shipments before the end of July”.
In spite of the telegraphic language used, it is clear from the terms and the form of the contract as set out above that every phrase and every sentence must be accorded their full import. Certain salient and incontrovertible facts must be borne in mind. Some of those facts are that both the plaintiff and the defendant are traders in stockfish; that the plaintiff wanted the stockfish for resale, and this was known to the defendant; that both the plaintiff and the defendant were at the time of the execution of the contract resident in Port Harcourt; that the stockfish was to be delivered at Port Harcourt in any case; that the price of the 700 bales of stockfish was quoted C.L.F. Port Harcourt where payment was also to be made; and that on its face, exhibit 1 is silent as to the place or port of shipment or of loading the stockfish for Port Harcourt.
It is our considered opinion that the first sentence “on three separate vessels, first vessel in June, second and third vessels before end of July”, must be and was intended to be separately interpreted for the purpose of ascertaining the intention of the parties. Considered in this sense and construed in this way, the sentence must mean
“On three separate vessels to arrive in Port Harcourt, the first such vessel to arrive in June, the second and third vessels to arrive before the end of July”.
In the second sentence, the word “shipment” was intended to qualify quantities and sizes of the stockfish sold. Hence the phrase or expression:
“First shipment-100 bales; 50/50, 50 bales 40/60 and 50 bales 50/70”, etc.
The word “shipment” as therein used therefore bears no relevance to the time of the delivery of the bales of stockfish at Port Harcourt or of placing the bales of stockfish on board ships anywhere in the world. This must be so because otherwise it would be importing into the contract ideas not patent on the face of it. In our view, if it was the intention of the parties or even within their contemplation that the word “shipment” should refer to the port or the time of shipping or of placing the stockfish on board any ship, then the word should have been followed not by the quantities and descriptions of the stockfish sold but by the name of the Port of shipment which, according to the shipping documents, exhibits 16, 17 and 18 and on the evidence was well known to the defendant at the time of making the contract to be Bergen, where in fact the loading took place and the stockfish was consigned to Port Harcourt.
On its face, the contract appears quite plain. There is no ambiguity. To demonstrate this and keeping faithfully to the con the contract may be rewritten in part thus:
“The plaintiff agrees to buy from the defendant and the defendant agrees to sell to the plaintiff 700 bales of Norwegian stockfish each bale weighing 45 kilos nett at the price of 280s per bale C.I.F. Port Harcourt nett, to be delivered at Port Harcourt on three separate vessels; the first vessel to arrive Port Harcourt in June, the second and third vessels before the end of July. The first shipment of the stockfish shall comprise 200 bales made up of 100 bales, 50/50, 50 bales 40/60 and 50 bales 50/70, etc.”
In view of the foregoing, we have reached the conclusion that the learned trial judge was wrong in law to have held that the word “shipment” referred only to the placing of the stockfish on board ships, and that since the stockfish had been shipped in Bergen in June and July, the defendant had discharged its obligation under the contract and that the plaintiff was not therefore entitled to rescind the said contract when the stockfish failed to arrive.
With regard to the final complaint by the plaintiff it follows from our conclusion above that, as the stockfish failed to arrive in Port Harcourt in June and July as stipulated in the contract, the plaintiff was entitled to reject it and to repudiate the contract as, in our view, time was of the essence of the contract since the goods were meant for resale and this was known to the defendant. It is settled law that in ordinary commercial contracts for the sale of goods the rule clearly is that time is prima facie of the essence with respect to delivery. (See McDougall v. Aeromarine of Emsworth Limited [1958] 1 W.L.R. 1126). In Sanday and Co. v. Keighley Maxted and Co. (1922) 91 L. J. K. B. 624 where the contract was for the sale of cargo to be shipped on a vessel “expected to be ready to load late September” whereas the vessel was not available until November, the buyer was held entitled to refuse the cargo. In the result, this ground of appeal also succeeds.
The real problem in this appeal is as to damages due to the plaintiff as the matter was not considered by the learned trial judge. Unhappily, the plaintiff himself, not having had the advantage of the assistance of a counsel, was not able to give cogent evidence as to any loss suffered by him in consequence of the breach of contract by the defendant. The only evidence available on record is that the plaintiff had deposited with the defendant at the time of executing the contract the sum of 700(pounds).
As endorsed on his writ of summons, the plaintiff’s claim is for the sum of 700(pounds) being money had and received; and 300(pounds) damages for a breach of contract. On our construction, since there had been a breach of the contract by the defendant, the plaintiff was entitled to repudiate it and sue for damages. In his evidence under cross-examination on the other hand, the plaintiff admitted having bought a total of 168 bales of stock fish as shown on the invoices, exhibits 3, 4, 5, 6, 7 and 8 in the proceedings and having paid cash for them and at the same time having authorised the under mentioned endorsement to be made on each of the said invoices, namely,
“The difference between this price” (i.e. the price paid) “and the cost price will be debited to Mr Amadi’s deposit account with us.”
Thus the plaintiff had agreed when buying and paying for the 168 bales of stockfish that the differences between the prices which he paid then and the actual cost prices paid by the defendant for the stockfish should be debited to his deposit account with the defendant. On the evidence it is impossible to determine those differences.
In the event we propose to, and do make the following orders. This appeal is allowed. The judgment and order of the High Court dismissing the plaintiff’s claim in suit No. P/99/63 and entering judgment for the plaintiff in suit No. P/5/64 in the sum of 6931(pounds) with inclusive costs of 60 guineas are hereby set aside.
The claim of the plaintiff in suit No. P/5/64 is hereby dismissed. Judgment is entered for the plaintiff in suit No. P/99/63 in his claims with the direction that the case be, and it is hereby remitted to the High Court, Port Harcourt for damages, if any, to which the plaintiff therein is entitled to be assessed after the taking of relevant evidence and also taking into account and deducting there from the debt due to the defendant resulting from the differences between the purchase prices and cost prices of the 168 bales of stockfish sold by the defendant to the plaintiff as shown on exhibits 3, 4, 5, 6, 7 and 8. Costs in the High Court to abide the event. The plaintiff is entitled to the costs of this appeal assessed and fixed at 84 guineas.
Other Citation: (1972) LCN/1451(SC)
