Alhaji Yusuf Dan Hausa & Co. Ltd V Panatrade Ltd (1993)

LawGlobal-Hub Lead Judgment Report

OGWUEGBU, J.S.C.

The plaintiff entered into a contract for the supply to the 1st defendant, 5,000 metric tons or 100,000 bags of American long grain par-boiled rice at N28.25 per bag. The 2nd defendant gave an undertaking to the plaintiff that the cargo of rice would be paid for by it as the cargo of rice is received. The 1st defendant is the agent of the 2nd defendant.

It was the contention of the plaintiff that it was a term of the contract that fluctuations in the exchange rate between the naira and the dollar would be borne by the 1st defendant. The exchange rate of the dollar appreciated at the time of the delivery of the rice to the defendants. The plaintiff debited the defendant in the sum of N155,681.47. The plaintiff in paragraph 19 of its statements of claim averred as follows:-

1. Wherefore the plaintiff claims from the 1st defendant’s (sic) jointly severally the sum of N455, being outstanding balance for the price of 5,000 tones of U.S.

No.2 Rice delivered to the 2nd defendant’s warehouse vide the Order of the 1st defendant.”

The 1st defendant filed its statement of defence and counter-claim. In paragraph 29 of its amended statement of defence and counter-claim, the 1st defendant claimed as follows:-

“Whereupon the 1st defendant claims against the plaintiff and the 2nd defendant jointly and severally for the sum of N298,586.30k”

The plaintiff filed his defence to the counter-claim denying liability to the counter-claim.

At the close of pleadings, the learned trial judge fixed the case for definite hearing on 13th February, 1984. On this date parties were absent but were represented by their counsel. The learned counsel for the plaintiff applied for an adjournment. This application was granted and the case was adjourned to the 14th and 15th May, 1984 with costs against the plaintiff.

On 14th May, 1984, the plaintiff and his counsel were absent. The 1st defendant was present together with its counsel. The 2nd defendant who was absent was represented by counsel. The learned counsel representing the 1st defendant applied to the court to strike out the case under Order 24 Rule 5 (2) of the High Court (Civil Procedure) Rules 1976 of Sokoto State. Counsel for the 2nd defendant associated himself with the application.

After hearing the oral submissions of both counsel, the learned trial judge adjourned “for ruling and continuation if possible till 16/7/84 and 17/7/84.”

On 16/7/84, the learned trial Judge in his ruling struck out the plaintiff’s case and proceeded with the counter-claim. The 1st defendant counter-claimant testified on this date and the case was adjourned to the next day being 17th July, 1984.

On the date, the plaintiff and the 2nd defendant were absent. Counsel for the 2nd defendant was present. The 1st defendant and his counsel were present. He called three witnesses and the court adjourned to 6/8/84 for continuation of hearing.

For reasons stated in the record of proceedings, the 1st defendant’s counterclaim was further adjourned to 6/8/84. On this date, the 4th and last witness for the 1st defendant testified and the 1st defendant’s case closed. His counsel addressed the court and the case was adjourned to 17/9/84 for judgment.

Judgment was not delivered in the 1st defendant’s counter-claim on 17/8/4. It was further adjourned till 24/10/84. It was further adjourned from 24/10/84 to 6/11/84.