J. M. Aouad V. R. O. Nzimiro & Anor (1944)

LawGlobal Hub Judgment Report – West African Court of Appeal

Joint Adventure—Absence of accounts—Absence of notice toterminate—Practice on appeal regarding amendment of claim.

Facts

Plaintiff sued Defendants claiming (a) £207 15s. 4d., balance of goods supplied for sale on basis of profit-sharing, (b) £129 15s. share of estimated profit, and (c) £22 shop rent. The rent was admitted but not the other items. There had been an agreement for a joint adventure for ten years subject to termination on three months’ notice. No such notice had been given. Stock was taken on 29th September, 1941 ; but neither party produced accounts. Claims (a) and (b) were dismissed apparently on the ground that Defendants’ version of how the loss had occurred was as probable as Plaintiff’s ; and Plaintiff appealed. On appeal Plaintiff abandoned claim (b) for share of profits ; and when it appeared that claim (a) for balance of goods included £155 Is. relating to items in other transactions, Plaintiff applied to amend his claim to £52 14s. 4d. for shortage of stock and include the other items.

Held

(1) that an amendment which changed the subject matter of the action would not be allowed in the appeal ;
that once plaintiff established a shortage, the onus was on Defendants to account for the shortage ;
that no notice to terminate having been given as agreed upon, the joint adventure was still in existence ;
that in the absence of provision for an account to be taken during the term of the adventure, the law would imply an agreement to account at reasonable periods, which account would, however have to cover the whole adventure
that there being no claim in the writ for an account and no proof of anything due to Plaintiff, the claim for balance of goods supplied could not be sustained.

Appeal dismissed.