English Exporters (London) Ltd v. S.A. Ayanda (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C.

In the High Court Lagos, the plaintiffs, now appellants, instituted an action against the defendants, now respondents, by a writ endorsed as follows

“The plaintiff’s claim against the defendant is for 877pounds 16s 8d being damages for the loss sustained and more particularly described below by reason of the defendant’s breach of contract in the non-acceptance of a consignment of padlocks ordered by the defendant of the plaintiff but which the defendant wrongfully neglected to take up and pay for together with store rental charges of 19s 6d per week from the 7th day of February, 1968 until judgment.

Particulars of special damage

Contract price for the padlocks . Rental and bank charges from arrival of streamer to 24-11-67. . .Rental and bank charges from 24-11-67 to 29-1-68 … Rental and bank charges from 29-1-68 to 7-2-68 ….

p s d

788 11 0

64 16 3

6 2 10

18 6 7

——————

877 16 8

—————-

The endorsement on the writ, as can be clearly seen, itemised and enumerated the several heads of special damages. The parties filed their respective pleadings and the statement of claim filed by the plaintiffs avers a claim for the amount claimed on the writ in respect of padlocks ordered from them by the defendants and which on arrival in Lagos the defendants, in breach of their contract, “failed and neglected to pay the said price or to accept bills of exchange against the said documents”. On the other hand, the statement of defence denies a breach of the contract by the defendants and avers that by the terms of the same contract the plaintiffs were to ship the padlocks from the United Kingdom on the 20th January, 1967 but they did not do so until the 2nd March, 1967. Paragraph 14 of the statement of defence reads

“14. The defendant will contend at the trial that time was of the essence of the contract between the parties herein and that the plaintiffs have committed a breach of the said contract.”

The plaintiffs’ representative gave evidence at the trial and produced the original order as placed by the defendants. This was admitted in evidence as (exhibit 2A). Another plaintiffs’ witness, a clerk under the defendants’ bankers, testified that the documents which the defendants should have collected to pay for the goods were still with the Government and that the goods were in the bonded warehouse. The proprietor of the defendants’ firm also gave evidence describing the order for the goods, the non-payment for them due to delay in the shipment and the refusal of his subsequent request for delivery of the documents to him for acceptance on a 30-day basis. In a reserved judgment, Caxton-Martins, J. dismissed the case of the plaintiffs with costs and this appeal is from that judgment.

The only point argued before us concerns the liability of the defendants to damages for breach of contract. As the learned trial judge did not consider any other issues, not even that of damages or the quantum of damages, learned counsel for the plaintiffs submitted that the defendants are liable for having waived the lateness of the shipment of the padlocks they could now no longer rely on that ground for repudiating the contract. Learned counsel for the defendants submitted that his clients were entitled to repudiate the contract as the plaintiffs failed to ship the padlocks in accordance with the contract and that indeed time was of the essence of the contract.

We point out, first of all that the proprietor of the defendants had admitted in the course of his cross-examination that at no time did he complain to the plaintiffs in his many letters written to them asking for an extension of time within which he should be allowed to clear the goods and pay for them. We have no hesitation therefore in preferring and accepting the contention on behalf of the plaintiffs on this appeal. With respect to the lateness in shipping, upon which rests the defence of the defendants, the learned trial judge observed, in the course of his judgment, as follows

“It seemed to me that if even time was of the essence of the contract, the defendants by not revoking their order, had acquiesced to the subsequent two dates put forward by the plaintiffs.”

Thus, the learned trial judge found, as he was entitled on the evidence before him, that the defendants had waived their rights to rely upon the plaintiffs’ infraction of the contract by shipping the padlocks in March when they should have done so in January 1967.

It is usual to refer to the failure or neglect of a contractor to take advantage of the default of his co-contractor as a waiver since in those circumstances there cannot be a novation as no further consideration exists for the new position. The party who has acquiesced in the failure or neglect or default of the other party is completely precluded from raising any defence that some default had occurred and he is in fact completely estopped from doing so in defence of his own subsequent breach or attempted repudiation of the contract. The principles upon which the courts act in those circumstances had been most compendiously summarised by Lord Cairns L.C. in the case of Hughes v. The Directors of the Metropolitan Railway Co. (1877) 2 App. Cas. 439 at p. 448 as follows

“My Lords, it is upon those grounds that I am of opinion that the decision of the Court below is correct. It was not argued at Your Lordships’ Bar, and it could not be argued, that there was any right of a Court of Equity, or any practice of a Court of Equity, to give relief in cases of this kind, by way of mercy, or by way merely of saving property from forfeiture, but it is the first principle upon which all Courts of Equity proceed, that if parties who have entered into definite and distinct terms involving certain legal results-certain penalties or legal forfeitureafterwards by their own act or with their own consent, enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.”

See also Ogle v. Earl Vane (1886) L.R. 3 Q.B. 272; Levey v. Goldberg [1922] 1 K.B. 688.

We observe that the learned trial judge, as he ought then to have done, did not proceed to order judgment for the plaintiffs. He observed that he had carefully examined the whole lot of correspondence exchanged by-the parties and that he was unable to find that “the minds of the two parties ever reached agreement on the essential particulars” of a contract. He eventually found “that (exhibit 2A) was abandoned by both parties as the contract between them and indeed (exhibit 2A) was not signed by the plaintiffs. ” It is sufficient to point out that those subsequent findings of the learned trial judge were not supported by the materials before him. The defendants never pleaded that they never had any contract subsisting between them and the plaintiffs. Indeed, the case of the defendants is that there was such a contract and that the plaintiffs were in breach of it. Furthermore, the Statute of Frauds requires that the memorandum on which a contract is founded should be signed by the party to be charged or his agent. (Exhibit 2A), which the defendants rely on as the contract between them and the plaintiffs, was signed by the proprietor of the defendants’ firm and the defendants are the party sought to be charged. In any case, as we stated before, these findings of the learned trial judge are not supported by any evidence and neither of the parties made the facts so found a part of his case or indeed his pleadings.

On the facts therefore, the plaintiffs are entitled to judgment on the issue of liability for damages. We notice that the learned trial judge did not make any assessment of the damages payable. This Court has pointed out numbers of times that a court of trial in dealing with cases involving damages should endeavour to assess such damages payable even if that court is not in agreement with the plaintiff’s claims and the extent of such claims. Such a step obviates the necessity of sending the case back for re-trial and the necessity for this is even more obvious where, as in this case, the judge who tried the case does not any longer exercise jurisdiction in that court.

The appeal succeeds and it is allowed. The judgment of the High Court, Lagos (Caxton-Martins J.) in Suit No. LD/570/68, including the order for costs, is set aside and we make the following orders

(i) Judgment is entered in favour of the plaintiff for the contract price of the padlocks of 788pounds,11s or 1pounds, 577.10 with costs and this shall be the judgment of the court.

(ii) The defendants shall pay the costs of the plaintiffs fixed in the court below at 315 pounds and in this Court at 141pounds.

Appeal allowed; judgment for plaintiffs.

SC.305/1970