Salzgitter Stahl Gmbh V. Tunji Dosumu Industries Ltd (2010)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA- ENEH, J.S.C

The Plaintiff/Company has claimed against the Defendant/Company in this action instituted in the Lagos State High Court, “the sum of DM127, 305.49 (N34,689 ..91) being the balance of payment in respect of Universal Coating and Laminating Plant for artificial leather sold by the plaintiff and delivered to the defendant in Lagos. Also interest on the said sum of 9% per annum until the total sum is liquidated. The defendant has refused, failed and/or neglected to pay inspite of repeated demand,” It is important to state early enough that the naira equivalent of the German Currency as claimed in the Writ of Summons as N34, 689.91k by the order of the trial court has been amended as per paragraph 9 of the Amended Statement of Claim to read N265, 005.33k. Both parties have filed and exchanged their respective pleadings and at the hearing have called witnesses in proof of their respective cases. In the final analysis, the trial court has found in favour of the plaintiff and has in entering judgment in respect of the two questions it has identified in its judgment reasoned and pronounced in these terms:

“The defence of the defendant/company is that the plaintiff/company did not ship certain 2 units of machinery, that is part of the consignment ordered and for this reason was not liable for the sum of DM 127,308.49 claimed by the plaintiff/company.

The reason for the defendant/company’s repudiate of liability for the claim came out only in evidence at the trial. The defence must therefore fail on the ground that the fact upon which the defendant/company sought to repudiate liability for the plaintiff/company’s claim was not pleaded. The evidence therefore led on this unpleaded fact goes to no issue.

In case I am wrong in holding that these facts upon which evidence was lead are not pleaded, I must still find that the defence fails because the evidence led to show that the plaintiff/company shipped only 4 units of machinery in place of 6 units therefore was not satisfactory.

Upon the pleading filed in this case the preponderance of evidence led at the trial weighs in favour of the plaintiff/company. I hold that the plaintiff/company has succeeded in proving its claim.”

On the second question identified by the trial court it has reasoned and entered judgment as follows:

“The defendant/company which filed its Amended Statement of Defence after the plaintiff/company had made their amendment to paragraph 9 of the Amended Statement of Claim did not plead specifically in answer to the said amendment. I hold therefore that the defendant/company did not join issue with the plaintiff/company as to whether or not the Naira equivalent to DM 127,308.48 was N265, 005.33. Further the defendant/company was not entitled to claim in German Currency as the issue was not raised in its defence. It is therefore immaterial that the defence counsel raised the issue in his final address. I will therefore enter judgment for the plaintiff/company against the defendant/company in the sum of DM 127,308.49 or N265, 005.33 the naira equivalent.”

The defendant being totally dissatisfied with the decision (that is on the aforesaid 2 questions) has appealed the same to the Lagos Division of the Court of Appeal (Lower Court) upon a Notice of Appeal filed on 4/5/87 in which it has raised five grounds of Appeal. In the result, the parties have filed and exchanged their respective briefs of argument. In sum, the lower court in a unanimous decision has upturned the trial court’s decision on the first question and on the 2nd question has by 2 to 1 majority also upturned the trial court’s decision in that respect. In disparaging the quality of exhibit G, i.e. payment schedule settled by the parties, the lower court at page 227 of the record has stated thus:

“I think learned counsel for the respondent has made a valid point that exhibit G can only have the effect of an admission, though he also added that it is in the nature of an account stated. But he seems to ignore or play down the effect of the inadequacies recognized in the plaintiff’s case which, in my view, he cannot comfortably and safely do having regard to the true nature of exhibit G.”

Also it has continued at p.232 of the record by showing the inadequacies in the plaintiffs case thus:

“To recapitulate some of the weak aspects of the respondent’s case, exhibit F prepared by the respondent binds it that an amount of DM145, 994.40 was paid by the appellant but does not bind the appellant that it was paid in bits and places. Exhibits A (the invoices) do not bind the appellant as they were not signed or acknowledged by it, nor were they accompanied or supported by way bills to show that the goods were duly delivered to and receipted for by or on behalf of the appellant. There are discrepancies in figures as pleaded and given in evidence by the respondent as much so that it is not clear where the truth of its case lies. The only witness for the respondent testified that four invoices covered the respondent’s claim whereas seven invoices were relied on in the pleading and admitted in evidence. The state of affairs was not explained. Exhibit G has been shown not to be capable of standing alone to impose absolute liability on the appellant. I think the judgment of the lower court putting liability on the appellant is difficult to reasonably justify in all the circumstances.” (Underlining mine for emphasis)

And at page 231 of the record it has found that:

“The appellant’s position is that the payment schedule was signed in anticipation of the respondent supplying all the Units of consignment agreed. That may look clumsy both in arrangement and in argument. But the evidence as a whole, judging from the testimony of the plaintiff’s only witness and the discrepancies between the figures appearing on the invoices and the claim, does not show that the respondent proved its claim.”