Wadih Chidiak V. A.K.I. Laguda (1964)

LawGlobal-Hub Lead Judgment Report

This is an appeal from the judgment of Coker J. of the High Court of Lagos delivered in the course of the hearing of an action for the dissolution of the partnership agreement made between the plaintiff and the defendant on the 2nd of April, 1960, and account and payment over of whatever may be found due to the plaintiff and an order that the management of the said business be handed over to the plaintiff.

On the 16th day of May, 1961, the learned trial Judge gave judgment for the plaintiff holding that the partnership agreement had terminated with effect from the 8th September, 1960; that the defendant should hand over the partnership business of the WAFSCO Hotel and the management thereof with the plaintiff forthwith: and that Messrs Pannel, Crewdson and Hardy, accountants and auditors be appointed accountants and referees to go into the accounts.

After the accounts had been gone into by the accountants the matter came back before the learned trial Judge for argument, and on the 11th August, 1962 a ruling was delivered by the trial Judge in which certain adjustments were made to the balance sheet and certain orders made with respect to the rights and liabilities of the parties.

The defendant being dissatisfied both with the judgment and ruling has appealed to this court and has filed twelve grounds of appeal.Objection was raised at the hearing of the appeal to those grounds which allege misdirection without giving the nature of the misdirection. Our attention was drawn on this point to the case of Adeniji v. Disu (1958) 3 FSC 104. A typical example of such a ground is ground 5 which reads thus:-

‘5. The learned trial Judge misdirected himself in law when he held as follows: The property in which the business is carried on is certainly not part of the partnership property as the partnership does pay rent to the owners for same.’

This ground is obviously not a direction, and therefore a complaint of a misdirection cannot arise. It is a finding of fact of the trial Judge, and the same is equally true of the other grounds alleging misdirection and ‘direction the prejudice of the appellant’. Time and again do cases come up on appeal in which matters are treated in the grounds of appeal as misdirection which are no more than findings of fact by the trial Judge.Perhaps it is time to make it clear again what is regarded as a direction. In the case of Bray v. Ford [1896] A.C. 44 at 49 Lord Watson said that:-

‘Every party to a trial by jury has a legal and constitutional right to have the case which he has made, either in pursuit for in defence, fairly submitted to the consideration of that tribunal’.

This is done by the trial Judge directing the Jury, who are the judges of fact, as to the issues of fact, and what is the law applicable to those issues. A misdirection therefore occurs when the issues of fact, the case for the plaintiff or for the defence, or the law applicable to the issues raised are not fairly submitted for the consideration of the Jury.

Where, however, the Judge sits without a Jury, he misdirects himself if he misconceives the issues, or summarises the evidence inadequately or incorrectly or makes a mistake of law, but provided there is some evidence to justify a finding it cannot properly be described as a misdirection. It is of course desirable, and we consider that it should be the practice that the particular findings to which objection is to be taken at the hearing of an appeal should be specified in the grounds of appeal, possibly under the ground of appeal alleging that the judgment was against the weight of evidence.

We now pass on to the substance of this appeal, but perhaps before stating counsel’s points of objection to the judgment and ruling, a short statement of the facts here would not be out of place. The respondent was running an hotel and catering business in Apapa known as WAFSCO Hotel. On the 2nd April, 1960, the respondent entered into an agreement(exhibit B) with the appellant to run this Hotel on a partnership basis.

The respondent proceeded to the United Kingdom on leave on the 12th April, 1960,and had planned to spend six months there. As a result of certain information reaching him as to how the business was being run he cut short his leave and proceeded home, arriving here on the 25th June, 1960. Mr. Ayoola of the accounting firm of Olatunde Ayoola & CO. who, according to the respondent,was an accountant to the partnership, audited the books of the partnership both during the respondent’s absence from Nigeria and on his return.

He found the appellant unco-operative, and unable to explain the loss of certain documents as well as certain sums of money. On application to the High Court, the appellant was removed from the management of the partnership property on the 7th November, 1960, a receiver having been appointed on the 17th October,1960,in the course of an earlier application to the High Court.

At the hearing of the appeal, counsel’s quarrel with the judgment and ruling of the trial Judge were four fold and were that:-

(1)The trial Judge erred in holding that during the taking of the account the present appellant should be debited with the maximum amount realized from exhibits ‘E 2’, T1 and T2 in view of the appellant’s failure to produce a missing book required for accounting purposes. This, counsel held,was punitive and that the correct order was for the appellant to have been debited with the average takings in those three available exhibits.

(2) The appellant should not be debited with the full sum of £290-12s- 9d shown at folio 1 of the balance sheet under the heading’Bar and restaurant deficit’; that the appellant should be made to bear half of this loss only.

(3)The appellant having supplied seventy-five chairs to the partnership business at a cost of £375 to himself, the partnership should be made to bear about a half of the cost price of same i.e., about £180.

(4)That the fifth order made by the trial Judge on the 11th August, 1962 was unfair to the appellant as it had the effect of keeping the appellant waiting indefinitely for the sum found due and owing to him on the taking of the account.

On the first point, to which reference has been made, the trial Judge ordered that the appellant be debited with the maximum monthly takings which was £1,592-11.9d (Lodgers bills) as shown in exhibit ‘T1’ as against the average monthly takings of £1,335-13s-3d. He came to this conclusion for two main reasons:-

(a). because the loss of the book or the failure to produce it for accounting purposes was the fault of the appellant, and

(b). because the appellant’s ‘hands’ were far from‘clean’,(to use a term in equity), in the running of the partnership business in the absence of the respondent.

No authority in law or precedent in accounting has been cited to us to show that the learned trial Judge came to a wrong decision on this point and in our view looking at the matter fairly, the conduct of the appellant in the handing of the partnership business which the trial Judge described as ‘opprobrious’ was not such as to evoke sympathetic treat. We do not think there is any substance in this point.

The next ground argued was that the appellant should have been debited with only half of the ‘Bar and restaurant deficit’ of£290-12s-9d. The learned trial Judge held on this point that:-

‘It is therefore unfair in my view to debit the plaintiff with the deficit of £290-12s-9d incurred during his absence and for which no explanation whatsoever was forthcoming from or by the defendant. I accept the argument of counsel for the plaintiff therefore that that item i.e.,£29012s-9d should be debited against the defendant.’

With respect to the learned trial Judge, we cannot see how the fact that the plaintiff was away from Nigeria at the material time in anyway enhances the argument of the plaintiff. He was a partner in the business,and by the agreement exhibit ‘B’ they both agreed to the appointment of the appellant as the Managing Director ‘with full powers on the question and nature of staff and general business administration’. There is no specific allegation of misappropriation found against the appellant with regard to the running of the bar and restaurant, and the fact that the appellant was unable to explain how the loss occurred in the running of the total loss. In our view this loss should be borne in equal shares by the partners.

The third problem presents some difficulty in the absence of any specific finding by the trial Judge as to whether in fact the appellant(1) did supply seventy-five chairs to the hotel and (2) that he paid £375 for the said chairs. In fairness to the trial Judge, the evidence adduced on this point was far from satisfactory. The respondent was never cross-examined on this point, and the evidence of the appellant amounted to no more than his ipsedix it that:-

‘In addition to this amount of £1000, I supplied seventy-five chairs costing £375.’

Now if as we read the whole of the evidence on this issue,these chair’s were supplied on the same day as the £1000 was paid, then they were supplied on the 8th April, 1960 before the respondent proceeded on leave and after the making of exhibit ‘B’. It is therefore surprising that the appellant obtained no note or memorandum or receipt to that effect. Again if they were supplied after the respondent had left Nigeria, the appellan

Other Citation: (1964) LCN/1141(SC)