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: