Joseph Daboul Ltd V. Chief A. Majekodunmi (1977)

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D. A. R. ALEXANDER, C.J.N. 

At the conclusion of the hearing of this appeal, and without calling on learned counsel for the respondent, it became clear to us that this appeal was without substance or merit and we accordingly dismissed it. We now give our reasons for doing so.

The plaintiff/respondent’s claim was for –
“(i)   A declaration that between the 10th day of January, 1972 and 24th day of April, 1972 the Defendant agreed to run the transport business of the Defendant’s fourteen (14) FIAT Type 682 T3 Registration Nos. LO.6995; LO. 6996; LO.7001 to LO. 7003; LO. 7602 to 7605; LO.7607; LR.4230; LR.6938; LR. 6939 and KNB. 1675 on behalf of the Plaintiff as per a Written Agreement made between the Defendant and the Plaintiff.
(ii)    An account of all the proceeds expenses and profits that come to the hands of the defendant or received by any other person on its behalf or account in respect of the running of the 14 FIAT LORRIES or any  part thereof between the 10th day of January 1972 and 24th day of  April, 1972 and for what is due from the Defendant to the Plaintiff in respect of the running of the said Transport Business.
(iii)   Payment by the Defendant to the Plaintiff of any sum found due to the Plaintiff upon taking such account, and
(iv) 5,400 pounds being the difference in the amount actually refunded to the Plaintiff by the Defendant on the 24th day of April,1972 and his deposit of 20,000pounds with the defendant.”
The following facts emerged from the findings of the learned Chief Judge, Adefarasin, CJ., who tried the case.

At the material time the respondent was a businessman engaged in road transport business. The appellant, a limited liability company, whose managing director and principal shareholder was one Joseph Daboul, agreed in December 1971 to sell fourteen lorries to the respondent at 5,000pounds each, that is, for 70,000pounds.  See Exhibit 1. In January 1972, the respondent purchased these lorries on an instalmental basis and paid to the appellant an agreed deposit of 20,000pounds to cover the cost of four lorries.  It was also agreed by and between the parties that the balance of 50,000pounds should be paid in twelve instalmental payments of 4,166pounds each, the first  instalment being payable at the end of February 1972, and the last at the end  of January 1973, and  that the fourteen lorries would be delivered to the respondent on the completion of the instalmental payments.

The parties further agreed that, pending the delivery of the lorries to the respondent, the appellant, in its own name, was to run a transport business with the fourteen lorries as agent for, and on behalf of, the respondent. In pursuance of the agreement, the appellant purported to carry on the business on behalf of the respondent and made certain disputed payments into a joint account of which the respondent and Joseph Daboul were to be the signatories, on account of the proceeds of the business. The formal agreement executed by and between the parties was admitted in evidence as Exhibit 3. In April 1972, the respondent received from the appellant a cheque for 14,912.6.3d in respect of which he signed a receipt (see Exhibits 11 and 13), prepared for his signature without any previous  agreement or discussion, for 20,000pounds. He signed the receipt as the result of a threat by the appellant that unless he signed the receipt for 20,000pounds he would get no more money from his investment. In fact he received 14,912.6.3d and  he never agreed to forego his interest in the transport business.

This receipt which was tendered by the respondent as Exhibit 11, and by the appellant as Exhibit 13, reads as follows –

“THE IS TO CERTIFY that I, CHIEF ADEPOJU AKINWUNMI MAJEKODUNMI OF P.O. BOX 150 Abeokuta do hereby receive from Joseph Dahboul Ltd., of 35, Payne Crescent, Apapa, the total sum of 20,000: (Twenty Thousand Pounds) representing my deposit paid to him in pursuance of Sale Agreement dated 10th January, 1972 of 14 lorries executed between me and the aforesaid Joseph Daboul Ltd., and which said agreement I have agreed should be of no further effect.

DATED this 24th day of April, 1972.

(SGD.) CHIEF ADEPOJU AKINWUNMI MAJEKODUNMI.”

The appellant’s case was that the transaction between the parties was in the nature of a mere hire-purchase agreement, that Exhibit 11 was a valid document of discharge in the nature of “accord and satisfaction” as between the parties and, also, that a letter (Exhibit 29) purported to have been written by the appellant’s solicitor to the respondent supported the appellant’s contention.  In Exhibit 29, the appellant’s solicitor purported to write to the respondent complaining about the appellant’s alleged default in making the instalmental  payments provided for in the agreement and threatening to treat the appellant as being “in breach of the agreement with its immediate following effects accordingly.”

The learned Chief Judge found for the respondent and made a number of orders in the following terms –

“I find for the plaintiff and make the Order for the declaration sought by him in his first claim as stated by me in this judgment at the outset.  Further I make order for an account to be filed by the defendants within 30 days of this date, of all the profits, expenses received by them or any other person on their behalf in respect of the 14 lorries set out on the plaintiff’s writ and in the first paragraph of this judgment. It is ordered that the account shall cover the period 10th January, 1972 until this date and shall show what is due to the Plaintiff on the Transport Business.  The said account shall be served upon the Plaintiff’s Solicitors within 30 days of this date. The Plaintiff shall be at liberty to make such application as he might deem fit for the surcharging or falsification of  the said account. The third and fourth orders prayed for shall abide the result of the account to be filed by the defendant. Costs against the defendant for the proceedings so far are assessed at N500 of which N189.64 is the out of pocket expenses.”

Counsel for the appellant relied on and argued only grounds 2 and 3 of the five grounds of appeal filed by him.  These somewhat nebulous grounds, which were argued together, read as follows:-

“2 That even if the contract is valid the learned trial Chief Judge was wrong in Law not to have dismissed the respondent’s case on the face of the document of Discharge discharging the parties of their obligations under the Contract signed by the parties, and which said documents was admitted in evidence at the trial in the lower court.