Patrick Abusomwan Vs G.o. Aiwerioba & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, JSC.

Both the plaintiff/appellant and first respondent were businessmen in Benin. They proposed to jointly float a company so that they would trade together in certain commodities. It seemed that joint venture company could not be incorporated in time and it was decided that for the time being each should carry on business in his name or private capacity.

It was however agreed that the plaintiff could bring his goods into the premises of the first defendant who would arrange for marketing the same and pay into the account of plaintiff with International Bank for West Africa Limited, Benin-City. The second defendant was a company exclusively owned by first defendant who was sole signatory to its account with a bank.

Both the plaintiff and the second defendant, by separate letters of credit ordered boxes of nails and iron rods from Britain. The vessel bringing these building materials docked at Ogharefe Jetty, near Sapele. Seagul Agencies, a clearing agent, was contracted by each party to clear the cargoes of nails and rods. Plaintiff sold some of his consignment at Sapele.

The remaining items for plaintiff, 121 boxes of nails, were finally delivered to the premises of second defendant at 14 Ugomoson Street, Benin-City evidenced by Way Bills from port of delivery by Seagul Agencies aforementioned. The consignment belonging to second defendant were similarly delivered along with the plaintiffs. According to the plaintiff, the defendants, in whose premises the plaintiffs goods were delivered, in accordance with their understanding sold the goods.

But instead of paying the entire proceeds to the account of the plaintiff at International Bank for West Africa Limited, who gave him loan facility to order the goods the defendants paid only N43,4040.00 instead of N89,298.00 realised from the sales. Similarly, the remaining consignment of plaintiffs iron rods delivered to the premises of the second defendant under the same understanding valued at N268,246.00 was sold by defendants and only N 126,770.90 was credited to plaintiffs account. For the nails the defendants were to account for the outstanding N45,894.00 and for iron rods N141,475.30. After several demands for payment of these sums of money, with defendants refusing or failing to pay, the action leading to this appeal was taken. Several amendments were made to the pleadings by both sides. At the end of the trial the Judge inter alia found in his conclusion as follows:

“The goods ordered by plaintiff and those ordered by 1st defendant were about equal. As at 26th January 1978 the sum of N104, 024.44 was paid into the Account of 1st defendant with New Nigeria Bank Limited Benin-City while the sum of N139,915.00 was ………………………..

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The plaintiff agreed taking part though not fully in the marketing of the rods and nails. 1st defendant was the Managing Director while the plaintiff was the Executive Director/General Manager. Plaintiff signed Exhibits 16 to 22 as the General Manager of Grand Brothers.

The plaintiff did not plead that any quantity of the 1/2″ rods were sold by him at the wharf. Any evidence given to that effect goes to no issue.

Apart from the consignment of the goods to the premises of the 2nd defendant, I do not see anything done by 1st or 2nd defendant regarding their participation in the sales more than what the plaintiff did. While the sales lasted the sellers were “marked out as staff of Grand Brothers” according to the plaintiff. See paragraph 7, 8 and 15 of the further amended statement of defence and Mr. Aiwerioba’s evidence.

In the event I hold that the plaintiff has not proved his case.

The claim is hereby dismissed.”

In the event, according to learned trial Judge, the plaintiff failed to prove his case and it was dismissed. This led to the appeal to the Court of Appeal. The grounds of appeal, three grounds on misdirection in law and fact and one on general grounds, complained of the trend of evidence based on pleadings before learned trial Judge differed fr6m his conclusions. There was copious evidence that the goods were delivered to the premises of the respondents and this was confirmed by John ibagun (P.W.1) and Edward Obaze (P.W.2) which trial Judge erroneously or inadvertently overlooked. The evidence in the Court of trial was mainly documentary and on appeal the appellant raised the following issues for determination:

(1) “Was it established on the evidence on record that any part of the proceeds of the sale of plaintiff’s goods paid into the account of the defendants?

(2) Was the amount due to plaintiff for his goods delivered to the defendants ascertained or ascertainable?

(3) Was the learned trial Judge right to hold that the defendants, into whose accounts proceeds of the sale of plaintiff’s goods have been paid were not liable to pay the plaintiff or render an account on the said money to the plaintiff?

(4) Was the learned trial Judge right to dismiss the plaintiff’s claims on the grounds set out by him for doing so as shown in this judgment?

(5) Having set out what plaintiff must prove to succeed in the action and having resolved these matters in favour of the plaintiff, was the learned trial Judge right to dismiss the plaintiff’s claim as he did?

(6) On the evidence on record, was the learned trial Judge entitled to hold that the defendants and or their servants did not sell the plaintiffs goods?

(7) Was the judgment of the learned trial Judge supported by the evidence on record?”

The Court of Appeal after hearing the parties on the appeal relative to the issues for determination by both parties found for the appellant on the issues and allowed the appeal on issues 3, 4, 5, 6 and 7 raised by the appellant. The Court of Appeal also held that there was clear evidence that some of the goods of the plaintiff/appellant in the yard of the defendants were sold and the proceeds paid into defendant’s accounts rather than plaintiff’s account as agreed between the parties when the goods were delivered to the defendants. The Court of Appeal similarly, found that the justice of the case ought to be to order for account as the real amount could be easily ascertained from documents. The respondents who were victorious in the High Court never cross-appealed to the Court of Appeal, nor filed respondent’s notice on contention that judgment be affirmed or varied on other grounds (as in Order 3 Rule 4 Court of Appeal Rules); none the less that Court after upholding the appellant’s contentions on the issues for determination made an order for trial de novo. I find this to be an error by the Court of Appeal in that the remittance of the case for trial de novo is improper after the appellant had been vindicated and judgment was given in his favour. The general power of the Court of Appeal, as in section 16 Court of Appeal Act is clear. All the issues triable had been determined and what remained is for the Court to order the respondents to render full account. The parties formulated the same issues for determination and looking at the claims in the trial Court, and in the appeal the issues formulated for the Court of Appeal the ultimate order for trial de novo is not justified.

Trial de novo should only be ordered where the justice of the case, looked at in all its special circumstances justifies it. However, where all the facts pertinent to the decision of the Court of trial had been put right and no new issues are on the face of record triable again the Court of Appeal should not order retrial; a retrial in such a case will be against the very foundation of decision-making process by the appellate Court.

In allowing the appeal in this case all the grounds of appeal and issues for determination pursued by the appellant were allowed; what remained was consequential order to make on monies received or collected by respondents in the sale of appellant’s goods, Section 16 Court of Appeal Act ought to have been invoked. A trial de novo certainly will put the trial Court in a dilemma of hearing fresh evidence, but that alone cannot amount to blank cheque for reversing findings already made by the Court of Appeal a power a trial Court no longer has in this circumstance. The alternative claim for rendering accounts ought to be the order.

The respondents have not cross-appealed and there was no reason why trial de novo should come in except by error which I find in the consequential order of that Court after allowing the appeal. There are no new issues not decided and the order for account not made, could be made by this Court by virtue of Section 22 Supreme Court Act. [See Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325, 348]. There are documents recording the sale of appellant’s goods paid into the defendants account and the appropriate order to make is for the respondents to render full account of the proceeds to the appellant.

I allow this appeal, and by virtue of Section 22 Supreme Court Act I order the defendants to render account of the proceeds of sale of the plaintiff/appellant’s goods paid wrongly into the defendants/respondents’ account.

In consequence of this I make the following orders as in the alternative claim of the plaintiff as follows:

(i) An order that the defendants jointly and or severally do render account within 30 days of the sale of the plaintiffs said nails and 1/2″ rods and

(ii) that order that the sum of money found due and payable to the plaintiff be paid by both or either of the defendants to the plaintiff forthwith.

(iii) interest on the total sum due and payable to the plaintiff at the rate of 11% per annum from the 1st day of September, 1978 until the date of this judgment.

I award the cost of N1,000.00 in favour of the plaintiff/appellant against the defendants/respondents in this Court. The cost ordered in the Court of Appeal if paid, should be refunded to the plaintiff/appellant and I hereby order a cost of N200.00 in favour of the plaintiff/appellant as the cost in the Court of Appeal against the defendants/respondents.

Other Citation: (1996) LCN/2718(SC)