Akeem Adekunle & Anor V. S. K. Ajayi (Nigeria) Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment)

This is an appeal by the defendants against the judgment of A. O. ODUSOLA, J. sitting in the High Court of Justice of Ondo State which judgment was delivered 18th March, 2005. The respondents as plaintiffs, at the trial court claimed against the appellants as defendants jointly and severally the sum of Two Hundred and Seventy Eight Thousand Six Hundred and Sixty Naira Only (N278, 660.00) being outstanding balance due to the plaintiffs from sales of beer and soft drinks by the first defendant early in 1996 and for which the second defendant early stood surety.

The 1st appellant denied the claim of the respondents upon which he filed his Consequential Amended Statement of Defence and Counter-Claim. The counter-claim was however dismissed to the dissatisfaction of the appellant for want of proof.

At the close of evidence and address of counsel, the learned trial Judge gave judgment for the plaintiffs with costs of N2,000.00. The defendants feeling aggrieved by the decision have appealed against the judgment, filing nine grounds of appeal, though ground eight is abandoned for want of leave.

The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellants’ brief dated the 31st of July, 2006 and filed 3rd August, 2006 as well as the appellants’ reply brief dated and filed 21st November, 2006 were both settled by OLADELE, AYOOLA ESQ. On the part of the respondents their brief of argument dated 15th October, 2005 but filed 19th October, 2006 was settled by OLUMIDE AKINBINU ESQ.

At the hearing of the appeal on 22nd October, 2013 the learned counsel for the appellants adopted and relied on their respective briefs as their argument in this appeal. In the same vein the learned counsel for the respondents adopted and relied on the respondents’ brief as their argument in the appeal.

The crux of the appeal is that the respondents employed the 1st appellant as a sales clerk while the 2nd appellant stood as a surety/guarantor to indemnify the respondents against loss or theft of goods in the respondents’ store in the course of 1st appellant’s employment. When stock of the goods in the store was taken on 2nd March, 1996 it was discovered that the respondent had a total shortfall of N598, 910. Having admitted responsibility for the shortfall, the appellant paid up part of the indebtedness leaving a balance of N278,650.00 which formed the claim of the plaintiff/respondent at the trial court.

Having abandoned ground eight out of his original nine grounds of appeal, the appellant distilled the following six issues for determination of the appeal. They are:

i. Whether the learned trial Judge properly directed himself as to the existence of a cause of action between the parties, having regard to the way the first appellant was keeping the Plaintiff/Respondents’ account. (Grounds 1 and 2).

ii. Whether the non-joinder of the plaintiff/respondents’ customers, whose names and addresses were specifically pleaded in paragraphs 12, 19 to 21 of the Consequential Amended Statement of Defence with Counter-Claim to this suit, renders the whole trial and judgment invalid, null and void ab initio. (Ground 3).

iii. Whether the learned trial Judge rightly considered the validity of the Employment Agreement (Exhibit ‘B’) and took a correct view as to its evidential value in arriving at the judgment. (Grounds 4 and 6).

iv. Whether the trial Judge rightly dismissed the Counter-Claim of the first Appellant. (Ground 7).

v. Whether the second Appellant is protected from the enforcement of Exhibit ‘B’ by section 3 of the Illiterates Protection Law Cap. 48, Laws of Ondo State of Nigeria, 1978. (Ground 5).

vi. Whether the judgment is supportable by the evidence on record. (Ground 5).