Messrs. Comptoir Commericial Industriel (Afrique) (Nigeria) Ltd Vs A. O. Onayemi (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, JSC.

In Suit No. LD/290/1968 in the High Court of Lagos, the claim of the plaintiff, now respondent, against the defendants, herein appellants, as endorsed on the writ of summons was in the following terms:

“1. The plaintiff is a trader with her business premises situate at 55, Idumagbo Avenue, Lagos.

2. The defendants are importers and manufacturers’ agents and have their business premises at 11 Martins Street, Lagos.

3. The plaintiff ordered through the defendants who are the sole importers and manufacturers’ agents of Walgust brand Tomato Paste, Five hundred (500) cartons of the said Walgust Brand Tomato Paste, on the conditions that “Exclusivity” be guaranteed to the plaintiff.

4. The defendants agreed to and granted the guaranteed “exclusivity” to the plaintiff to cover Lagos and Ibadan for a period of three months after receipt of the goods.

5. In consideration therefore and relying on the representations of the defendants the plaintiff deposited the sum of Three hundred pounds (£300) with the defendants.

6. The defendants were unable to guarantee exclusivity to the plaintiff when the goods arrived, as a result of which the market was flooded with goods of the same type selling at a lesser price.

7. The plaintiff therefore was unable to sell and/or make any profits whatsoever on the goods.

8. The plaintiff therefore claims from the defendants:-

In obedience to an order of court made in that behalf both the plaintiff and the defendants filed and exchanged pleadings. In her statement of claim the plaintiff averred that some time in March, 1967, the defendants offered to order for her, she being a trader, Walgust tomato paste and puree from their principals, the manufacturers in Europe; that in furtherance of the offer, the defendants further represented, in respect of the goods, to grant her “exclusivity” (sic) to cover Lagos and Ibadan for a period of three months after the receipt of the goods aforesaid; that she relied on the representation that she would be the only trader exclusively to sell the brand of paste and puree, the subject-matter of the offer, which she accepted, and thereupon ordered 500 cartons of the said Walgust tomato products through the defendants, to be shipped to her in Nigeria in two lots of 250 cartons each, for which purpose she, at their request, deposited the sum of £300 with the defendants; that before the arrival of the goods, the markets in Lagos and Ibadan were flooded with goods of the same type and make, which were being sold at prices much lower than even the cost price of the goods on order.

As a result she only took delivery of and paid for the first 250 cartons of the goods on arrival, and, then only on the further representation, coupled with a promise, made to her that the defendants would make good any losses that might be incurred by her as well as refund to her, her deposit of £300; that she was unable to sell and make any profit on the first shipment of which she took delivery but instead sustained, losses; that the defendants took delivery of, and sold the second shipment of £250 cartons on arrival; and that in addition to the losses, which she sustained, the defendants have bluntly refused on demand to refund to her the deposit of £300.

Hence her claim as already stated. The defendants admitted in their Statement of Defence certain averments contained in plaintiff’s Statement of Claim to wit: the offer and acceptance; the payment of £300 deposit for the goods ordered; the order for 500 cartons of Walgust tomato paste and puree to be delivered in two lots of shipment of 250 cartons each.

The defendants, however denied ever representing to the plaintiff to make good her loses or to refund to her the deposit of £300 or that the markets in Lagos and Ibadan were flooded before the arrival of the first lot of shipment in Nigeria. The defendants then alleged that as distributors of the goods, the subject matter of the transaction between them, they never at any time sold the goods to any other dealer than the plaintiff. They further alleged that it was only when the plaintiff refused to take delivery of the second lot of shipment on arrival that they had perforce to take delivery of the said goods at C.I.F. price and thereby incurred a loss over and above the deposit of £300, which the plaintiff had paid to them and which they forfeited. The defendants therefore pleaded that the plaintiff’s claim be dismissed as misconceived, frivolous and speculative.