Alhaji A. W. A. Yusuff V. Nigeria Tobacco Coy. Ltd (1977)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

This appeal is in respect of two suits HOY/9/70 and HOY/28/70 which were consolidated for trial at the High Court of the former Western State holden at Oyo by Odumosu, J. The first Suit HOY/9/70 was instituted by the appellant as plaintiff, against the respondent company as defendant, and judgment was entered in favour of the plaintiff for an amount of:(a) 7,425.16s.3d (pounds) (the equivalent in current currency is N14,851.62 1/2k freight charges “for goods carried by the Plaintiff for the defendant as per agreement Exhibit A;

(b) 600(pounds) (N1,200.00k) as special damages; and

(c) 500(pounds) (N1,000) as general damages for breach of contract.

The second suit HOY/28/70 which the defendant company instituted against the plaintiff is for a rectification of Exhibit A, an agreement between the two parties, and which was the basis of the claim in the first suit. This claim was dismissed.
The defendant company lodged an appeal against the judgment of the High Court to the former Western State Court of Appeal. On the notice of appeal, the defendant sought for relief thus:

“Setting aside the judgment of the court below and substitution of judgment for appellant and/or any such further or other orders as the Court of Appeal may deem fit.”

The Western State Court of Appeal after reviewing the arguments canvassed before it in relation to the facts as found by the trial Judge, concluded its judgment on the appeal thus:

“On the question of damages for breach of contract we are obliged to say that the cause celebre on the principles to be applied is Hadley v. Baxendale (1854) 9 Exhibit 341. These principles are so well known that we do not find any necessity to repeat them here. Suffice it to say, however, that the plaintiff had failed to show that he was entitled to special and general damages as claimed by him in respect of the contents of Exhibit A. However, to make a short work of the matter, we have held that there was no contract between the parties and so the issue of special or general damages does not arise at all.

We must however award an amount for work done quantum meruit for the tobacco which plaintiff carried for the defendant from Oyo to Ibadan. P.W.1 said in evidence that the value of the work done was 75(pounds). On the contrary the plaintiff said that his margin of profit per diem (or per journey) in his transport business was 15 and that he made 13 trips or journeys in respect of the carrying of tobacco for the defendant from Oyo to Ibadan. Since there was no challenge by the defendant to this aspect of the plaintiff’s case we feel inclined to award the plaintiff the sum of 195(pounds) (or N390) for work done i.e. 15(pounds) (or N30) per each of the journeys he carried tobacco for defendant.

The upshot is that this appeal succeeds in respect of the appeal against the award of damages. The appeal fails in respect of the defendant’s counter claim for rectification. The value of the work done for defendant by the plaintiff is fixed at 195(pounds) or N390. The award of 8,525.16s.3d(pounds) with costs made by the trial court in the plaintiff’s favour is hereby set aside. Judgment for the plaintiff for 195(pounds) or N390. There is no order as to costs. Each side to bear its own costs.”

The main contention canvassed before us was to the effect that since the plaintiff based his claim on Exhibit A, which showed the rate of 1/2d per 1b per mile, the defendant company’s unilateral mistake in believing that the agreement contained the normal freight rate of 1/2d per 100 lbs per mile, cannot avoid the contract.  The learned counsel for the defendant on the other hand, contended that since the plaintiff himself did not say that he knew the freight rate before executing Exhibit A, then it could not be held that Exhibit A was a binding agreement between the parties.

Learned counsel for the plaintiff conceded that it was wrong for the learned trial Judge to reject the evidence of the two witnesses called by the defendant merely because they were officials of the defendant and therefore interested parties. It was also not seriously contended that apart from the evidence of those two witnesses there were other witnesses called whose evidence if properly evaluated might support the defence which was set up.  It would appear that the Judge wrongly adopted the view that the onus lies on the defendant company to establish that Exhibit A is not a valid contract binding on them.

Before dealing with those contentions, however, we wish to state that because the defendant company failed to call the typist who typed Exhibit A as a witness, the Judge wrongly held that the provision of Section 148(d) of the Evidence Law applied and the failure to call such a witness was fatal to the case of the defendant. In fairness to learned counsel for the appellant, this issue was not part of the plaintiff’s case but was an issue formulated by the Judge himself.

In the Statement of Claim filed and delivered by the plaintiff he averred inter alia: –
“4. Sometime in November 1969, the plaintiff and the defendant’s representatives at Oyo agreed that the plaintiff carried the defendant’s raw product consisting mainly of tobacco leaves from its stores at Oyo and Ogbomosho to its factory at Ibadan, and in consequence  of this a carrier’s agreement dated 8th December, 1969, was entered into between the plaintiff and the defendant whereby it was agreed that the plaintiff would carry “specified goods from Oyo to Ibadan at the freight rate of 1/2d per lb per mile as contained in the schedule annexed to the said agreement.