C.S.A. Woodworks Ltd V. G. Igbinedion (1972)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
The plaintiffs’ writ of summons in Suit No. 1/171/64 in the High Court, Ibadan, was endorsed as follows:
“The plaintiffs’ claim against the defendant is for the sum of Nine Hundred and Ninety-Four Pounds Eight Shillings and Four Pence (994 pounds:8:4d) being money owing by the defendant to the plaintiffs in respect of work done in, and materials supplied for the defendant’s house at Feleye Layout, Molete, Ibadan, by the plaintiffs at the request of the defendant.
The defendant requested for the work and took delivery of the materials from the plaintiffs between August, 1963 and February, 1964 but has failed to pay to the plaintiffs the balance of 994 pounds:8:4d due from him to the plaintiffs despite the plaintiffs’ repeated demands.”
The relevant paragraphs of their Statement of Claim read:
“4. In July 1963, the defendant orally requested the plaintiffs, through the plaintiffs’ Woodwork Manager, to supply materials and undertake the erection of the roof, doors, frames, ceilings, windows and other wood-works necessary for the completion of his (defendant’s) new two-story houses at Feleye Layout, Molete, Ibadan.
- The plaintiffs supplied the materials and undertook the erection of the various woodworks requested by the defendant on the defendant’s house at Molete at a total cost of about 1,314pounds:8:4d.
- The defendant acknowledged the delivery of the materials supplied to his house and the work done thereto by the plaintiffs.
- The defendant paid to the plaintiffs on various dates, various sums of money totalling 320 pounds in respect of the materials supplied, and work done by the plaintiffs for the defendant on the defendant’s new two storey house at Feleye Layout, Molete, Ibadan.
- The defendant knows that the plaintiffs did expend (on material and labour) a total of about 1 pounds, 314:8:4d. on his (defendant’s) house and at his (defendant’s) own request; and that he is still owing the plaintiffs a sum of 994 pounds:8:4d.
- The position of the defendant’s account with the plaintiffs up to and including 31st August, 1964, is as shown in the Statement of the Defendant’s account prepared by the Officer in Charge of Accounts of the plaintiffs’ Association, and attached to this Statement of Claim and thereon marked Ex. ‘A’.”
Issues were joined by the defendant with the plaintiffs in the following paragraphs of his Statement of Defence:
“4. The defendant denies para. 4 of the plaintiffs’ Statement of Claim and states in reply that he never contracted with the plaintiffs, but on the contrary it was one Mr.Oladoyinbo, who personally agreed to do a piece of work for the defendant concerning the defendant’s building, which was then in progress and the defendant states further that it was a private arrangement between Mr. Oladoyinbo and the defendant in order to have a cheaper work, and puts the plaintiffs to the strictest proof thereof of this paragraph.
- The defendant states that no request was ever made in writing or orally to the plaintiffs.
- The defendant denies para.5 of the plaintiffs’ Statement of Claim and states that there was an understanding only between one Mr. Oladoyinbo in his private capacity and not in his official capacity to supply materials to the defendant.
- The defendant admits acknowledging the receipt of one bill of goods purchased by the said Oladoyinbo on his behalf from the plaintiffs, but the defendant states that he never did the negotation himself and state further that he never acknowledged the delivery of other materials supplied and is not aware from where Mr. Oladoyinbo purchased such materials and further puts the plaintiffs to the strictest proof thereof.”
The facts admitted before the High Court were that, in July 1963, the defendant, at an interview with the plaintiffs’ Woodworks Manager, one Oladoyinbo, requested the plaintiffs to carry out the roofing of his house at Feleye Layout, Ibadan, and to construct frames, ceilings and windows thereat. Shortly thereafter, the defendant wrote Exhibit ‘A’ which read as follows:
“The Manager,
Co-operative Furniture’s Dept.,
Ijebu Road,
Ibadan.
Sir,
Thanks for calling at the site, and I should be grateful, on your own time to see me between 5 p.m. and 5.30 p.m. today to know how progressive my business with you is. But don’t wait for me and no delay.
Shall I issue cheque in your name or company title I wish you comply with your promise, and as from Tuesday, I would like you to put up the doors and up-stair frames are now ready for measures, kindly send your boys.
Instant grateful.
G. Igbinedion.”
The plaintiffs supplied the materials and labour, the total cost of which was 1,314pounds:8:4d. The defendant paid an advance of 320 pounds supported by receipts, thus leaving a balance of 994 pounds:8:4d. which, despite repeated demands by the plaintiff company, the defendant had failed to pay. The defendant did not call any witness or give evidence but rested his case on that of the plaintiffs.
The learned trial Judge observed as follows:
“Upon an overall view of the case, I accept the evidence led in support of the plaintiffs’ case, I believe the 1st and 2nd P.W.s, and I find as a fact that the transaction was concluded by the defendant with the plaintiff/company through the 2nd P.W. I also find that the amount claimed was owed by the defendant. The defendant has not given evidence in support of the positive averments in his Statement of Defence. I hold that he had no serious challenge to offer to the plaintiffs’ claim.”
He accordingly gave judgment for the plaintiffs in the sum of 994 pounds:8:4d. against the defendant. The defendant, being dissatisfied with this decision, appealed to the Western State Court of Appeal on the following three grounds:
“1.The learned trial Judge erred in law to have given judgment for the plaintiffs in view of the fact that the averments in paragraphs 5, 6, and 9 of the Statement of Claim were not proved at the trial.
- The learned trial Judge erred in law to have shifted the onus of proving the plaintiffs’ case on the defendant.
- The decision is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”
After hearing arguments from both the appellant and the respondent, the Western State Court of Appeal found that, although Exhibit1A is evidence that “there was a transaction between the defendant and the plaintiffs and the transaction disclosed by this exhibit would only appear to be for the fixing of doors, and measuring of frames on the first floor of the defendant’s house, this is, no doubt, far short of the proof required to support plaintiffs’ claim”. It went on to specify that in order to succeed, the plaintiffs must prove that there was a contract as specified in the Statement of Claim, that there was a supply of materials, that there was the undertaking of the works also as specified in that Statement of Claim, and that the sum total of the materials supplied and the work done amounted to 1 pounds,314:8:4d. The court discounted the evidence of plaintiffs’ first witness, one Kujore, the company’s internal auditor, who gave evidence of the various works carried out at defendant’s house at a total cost of 1 pounds,314:8:4d in support of which he produced four Debit Notes for identification. It is interesting to note this observation of the court regarding the proof of the amount claimed by the plaintiffs and the evidence in support of it:
“There was a statement attached to the statement of claim; that statement was referred to in paragraph 9 of the Statement of Claim. It was alleged in that statement of claim to have been prepared by the officer in charge of accounts of the plaintiffs. That statement relates to four debit notes, and incidentally four debit notes were produced for identification in the court. No doubt the plaintiffs meant to rely on these debit notes showing the detail of alleged materials supplied and of value of work done to prove the amount allegedly owing by the defendant, but as we had earlier said, those documents were never in evidence before the trial court.”
Similarly discounted was the evidence of Oladoyinbo to the effect that the defendant contracted with the company through him in these words:
“that was when the defendant approached my company through me to do some work on his house. He paid part of the money. That was between August 1963 and March 1964. He wrote to me about the work…
He paid the money representing part of the amount due – he paid the money to the plaintiff/company. I was not allowed to undertake private works when I was with the plaintiff/company and I never did.”
Even though Exhibit ‘A’ that was supposed to have been addressed to him was in fact addressed to the company, his employer, and even though the defendant asked whether he should issue the necessary cheque in the name of Oladoyinbo or of the company, the Western State Court of Appeal nevertheless held, by a majority of two to one (Akinkugbe, J.A., dissenting) that the plaintiffs had failed to prove their claim because “there was no legal proof of the value of work done and the value of materials supplied to the defendant.”
Against this judgment in Suit CAW/111/69, the appellants asked and were granted leave to argue the following grounds of appeal before us:
“(1) The learned Justices of the Western State Court of Appeal erred in law in dismissing the plaintiffs/Appellants’ claim in this case when the plaintiffs/appellants have discharged the onus of proof required of them in civil cases of this type and essential for them to succeed in this case.
(2) The learned Justices of the Western State Court of Appeal misdirected themselves on the facts of the case in holding that ‘there is no evidence whatsoever before the learned trial Judge as regards the value of works done’ when the pleadings, evidence and exhibits in the case clearly show that there is such evidence and thereby came to a wrong conclusion.
(3) The learned Justices of the Western State Court of Appeal misdirected themselves on the facts of the case in holding that ‘thus, also, at the very best the learned trial Judge would be left with the value of materials and work done not legally proved’ when the evidence before the court in this case shows that these have been proved and thereby came to a wrong conclusion.
(4) The learned Justices of the Western State Court of Appeal erred in law in dismissing the plaintiffs/appellants claim in this case when by the evidence adduced in the case by the plaintiffs/appellants they have proved their case and the defendant/respondent failed to challenge such evidence on oath in that the defendant/respondent did not give evidence in defence of the action.
(5) The learned Justices of the Western State Court of Appeal erred in law in failing to give proper weight to the contents of Exhibit ‘A’ written by the defendant/respondent himself and thereby came to a wrong conclusion.
(6) The learned Justices of the Western State Court of Appeal erred in law by holding that ‘In other words, witness was giving oral evidence of the contents of documents that are available and that are not, without any explanation whatsoever, tendered in evidence’ when the purport of the witness’ evidence was to the contrary.
(7) The learned Justices of the Western State Court of Appeal erred in law in allowing the defendant/respondent’s appeal when all the three grounds of appeal filed and argued on his behalf before them are all misconceived having regard to the pleadings, evidence and exhibits in this case.”
Mr. B. O. Babalakin, learned counsel for the appellants, preferred to argue grounds 1, 2, 3, 4, 5 and 7 together first, basing all his arguments on ground 7, and then ground 6 lastly. He argued that the plaintiffs has at the trial court proved the averments in paragraphs 5, 6 and 9 of their Statement of Claim by calling both Kujore and Oladoyinbo as witnesses who testified respectively to the details of the account and the contract for work and labour between the company and the defendant. With regard to the Statement of Account, he pointed out that it was exhibited to the plaintiffs’ statement of claim and was included in the Record of Appeal before us, and that it must be deemed to form part of the plaintiffs’ case: Akpata v. Awoyemi (1960) 5 FSC 275. He submitted that the defendant did not go into the witness box to deny the evidence adduced in support of paragraph 5 or to explain the nature of the private transaction he said he had with Oladoyinbo. The only reply made to paragraph 9 of the Statement of Claim which the defendant made in his paragraph 11 was so evasive as to be ambiguous; the same evasiveness characterized paragraphs 4, 5, 6 and 7 of the Statement of Defence. He argued further that, throughout the case in the lower court, the defence was that the defendant was dealing with Oladoyinbo in his private capacity and not as agent of the plaintiff/company, and yet his averments in these last-mentioned paragraphs as well as in paragraph 11 would seem to amount to a “confession and avoidance”, and that, in view of the admission in paragraph 7 of the defence, the claim in paragraph 6 of the Statement of Claim must be taken as having been proved. He also submitted that, in view of Exhibit ‘A’, the plaintiffs were justified in carrying out the work and debiting the defendant with the cost of the materials, since the defendant must be deemed to have accepted the goods within the meaning of Section 36 of the Western Nigeria Sale of Goods Law, 1959.
As regards the suggestion that the learned trial Judge had shifted the onus that lay on the plaintiffs upon the defendant, learned counsel for the appellants contended that all that the trial Judge said was that the defendant must prove these parts of his Statement of Defence in controversy or as to which no evidence had been led at all; and that the trial Judge, after the plaintiffs had concluded their case, held that the defendant must provide evidence of the alleged private transaction with Oladoyinbo: sections 134 and 136 of the Evidence Act. He further submitted that, as this is a civil case, it must rest on a balance of probabilities: Miller v. Minister of Pensions (1947) 2 All ER 372 at p. 374.
With regard to the finding of the Western State Court of Appeal, that witness was giving oral evidence of the contents of documents attached to the Statement of Claim (that were available but not tendered in evidence), learned counsel pointed out that evidence of the contents of the documents in question was never given, but only oral evidence of the oral contract; and that, in any case, this point was never raised as a ground of appeal before the Western State Court of Appeal which raised it suo motu. We think that there is merit in these submissions of learned counsel for the appellants.
Mr. Somolu, learned counsel for the respondent, on the other hand, submitted that the majority judgment of the Western State Court of Appeal should be upheld because, according to him, the whole appeal involved an imperfect case for an account stated, in that paragraph 9 of the Statement of Claim does not claim as for an “account stated”, but merely sets out claims for work done or labour supplied. He cited the case of Witt and Busch Ltd. v. Madam Bola Taylor S.C. 318/66, a case which, in our view, has no relevance to the subject-matter of this appeal. Learned counsel also argued that, in order for a plaintiff to succeed, the amount he claims to be owing to him must be legally proved, that this the appellants in the instant case had failed to do, and that Akpata v. Awoyemi is not applicable. We are of the view that the appellants, by their evidence at the trial which the learned trial Judge accepted, have clearly established their claim as per their Statement of Claim and that there is no substance in this contention of the learned counsel for the respondent.
We will accordingly allow the appeal and set aside the judgment of the majority of the Western State Court of Appeal in Suit CAW/111/69 delivered on April 23, 1970 and, in its place we restore the judgment of the High Court, Ibadan, dated June 16, 1969, including its order as to costs. The respondent will pay to the appellants the sum of 50 guineas as costs in this appeal and 30 guineas as costs in the Western State Court of Appeal.
SC.162/1972
