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.
“5. The said agreement was signed by the Plaintiff and defendant’s representatives after the authorised representatives had read and explained its provisions, including the freight rate of 1/2d per lb per mile contained in the schedule annexed thereto, to the plaintiff and his witness. Both the defendant’s representatives and the plaintiff who signed the agreement are literate.
“15. On or about the 10th February, 1970 the defendant informed the plaintiff that the agreed freight rate was 1/2d per 100 lbs per mile.
The defendant averred thus in its defence:
“4. The defendant carries raw products consisting mainly of tobacco leaves from its leaf buying centres to Ibadan and to its store at Ogbomosho.
“5. The defendant engages carriers for the purpose of transporting the said products.
“6. Sometimes in November 1969 the plaintiff approached the defendant’s representative at Oyo and requested that he be engaged as a carrier.
“7. The plaintiff was told that he would be engaged on the usual terms as regards the freight rate.
“8. The parties agreed that the plaintiff would be engaged as a carrier on the usual terms as contained in the old agreement entered into with the defendant’s carriers in previous years.
“9. The usual terms as regards freight rate were that the goods carried would be carried at 1/2d per 100 lbs per mile.
“10. The parties orally agreed that the freight rate would be 1/2d per 100 lbs per mile.
“11. At the same time as an agreement was entered into with the plaintiff the defendant entered into similar agreements with other carriers on the same terms.
“12. A written contract dated 8th December 1969 was intended to embody the agreement made as stated in paragraphs 7 to 10 above.
“13. The said written agreement was signed by the defendant’s representative in the belief that it embodied the aforesaid terms in the schedule thereto; but it does not contain or embody it. The defendant never agreed to the terms contained in the fourth column of the schedule wherein the agreed freight rate was put at “1/2d per lb per mile” instead of “‘1/2d per 100 lbs per mile.”
“14. Sometime on or about 21st January 1970 the defendant discovered the error made in setting down the agreement in writing.
“15. The defendant immediately contacted all carriers including the plaintiff to return the documents for correction by inserting the omission in the fourth column of the schedule.
“16. All the carriers except the plaintiff complied with the request and the said correction was made.
“17. By the letter of 10th February 1970 the defendant once again requested the plaintiff to submit the document for correction but the plaintiff refused.
“18. The terms agreed on by the parties as regards freight rate for goods carried was ‘1/2d per 100 lbs per mile.”
On the pleadings and on the evidence led, the issue raised for a decision was what was the freight agreed on by both parties, that is, was it 1/2d per lb per mile as stated by the plaintiff or was the offer made by defendant 1/2d per 100 lbs per mile The learned trial Judge held that the offer made by the defendant company was 1/2d per lb per mile but that was due to a unilateral mistake unknown to the plaintiff; that was the freight stated in Exhibit A, the agreement executed by the parties.
According to the learned trial Judge, the plaintiff was never informed orally of the freight rate of 1/2d per 100 lbs per mile; and he therefore held that the plaintiff was entitled to the rate expressed in Exhibit A and gave judgment in favour of the plaintiff as earlier on indicated. The Western State Court of Appeal however, held, that if the trial Judge had properly evaluated the evidence before him he would have held that the freight charge contained in Exhibit A was a mistake mutual to both parties, and should have considered the plaintiffs claim on the basis of a quantum meruit of his daily profit of 15(pounds) (30 Naira). On this basis the Court of Appeal awarded a sum equal to the profit he would have made for the number of days on which he carried tobacco leaves for the defendant company and judgment was entered for that amount. The plaintiff has appealed to this court and the main contention was that Exhibit A is a valid contract between the parties, and that therefore his claim should succeed on the agreed rate in the agreement and not otherwise.
In his Statement of Claim the plaintiff averred that the defendant company’s representative read and explained the agreement to him and his witness, especially the agreed freight charge of 1/2d per lb per mile, before he, the plaintiff executed the carrier’s agreement Exhibit A. In his evidence-in-chief however, his case was that he approached the defendant company’s representative requesting that he should be considered for employment as a carrier of the defendant company’s tobacco leaves from Ogbomosho and Oyo to Ibadan. After some time his request was granted. Sometimes in November, 1969, another representative of the defendant company brought to him three copies of a carrier’s agreement forms which he signed. On 8/12/69 a copy of the agreement duly signed by the company’s representative was handed over to him. He stated that although he had engaged in transport business since 1958, he did not know of the freight charge offered to other customers of the defendant company but that he relied on the assurance given to him that the business was a profitable one. Under cross-examination, the plaintiff stated: –
“Before I started I did not calculate how much I would get. I relied on what Mr. Adebisi told me that it was a profitable job if I could do it. He did not tell me how much I would be making. I did not doubt Mr. Adebisi and I relied on what he said, viz. that it would be profitable if I could provide a sufficient number of lorries”.
Throughout the evidence of the plaintiff he did not state that he ever agreed on a specific freight charge with the defendant company. Quite contrary to the averment in the Statement of Claim, no evidence was led that any representative of the defendant company read Exhibit A to him and explained the freight charge contained therein. It was therefore surprising that the learned trial Judge found for the plaintiff because he did not establish what he set out in paragraph 5 of the Statement of Claim. On the other hand, the defendant company’s representative on whom the plaintiff placed great reliance, one Mr. Adebisi, gave evidence for the defence. He stated in great detail how the plaintiff, whom he had known since 1965 approached him for an offer of employment as one of the defendants tobacco leaf carriers and that he explained to him that the freight charge was ‘1/2d per 100 lbs per mile, which the plaintiff accepted orally. He also gave evidence as to how a typist was instructed to prepare 8 Carriers Agreement forms on the basis of the established form of contract for carriers. The typist however made an error in typing in the schedule “1/2d lb per mile instead of the established freight of 1/2d per 100 lbs per mile. When the mistake was discovered all the 7 other transport contractors surrendered their carrier’s agreements which were corrected but the plaintiff insisted on being paid 1,894.10(pounds) by Adebisi as a condition precedent to Exhibit A being corrected. The defendant company called three other transport contractors, who had been employed since 1955, and who confirmed that the established freight charge was 1/2d per 100 lbs per mile. The learned trial Judge adopted a wrong approach, as conceded by plaintiff’s counsel before us, in rejecting Adebisi’s evidence out of hand just because he was an employee of the defendant company. He even failed to consider the evidence of the other witnesses called for the defence.
The case of the plaintiff was that the defendant company’s representative read out Exhibit A to him and explained it and that he agreed. If that was established on the evidence by the plaintiff to the satisfaction of the learned trial Judge, that of course would have supported the judgment in plaintiff’s favour. As happened, the plaintiff himself said that that was not so. The agreement Exhibit A was signed by plaintiff first, in the absence of the defendant company’s representative. He did not know when defendant company’s representative signed Exhibit A except that his own copy of the agreement, Exhibit A was handed over to him on 8/12/69.
The plaintiff admitted being in transport business since 1958. He had always engaged in passenger transport business. His first attempt at “goods” transport was with the defendant company. At no stage in his evidence did he say that he ever agreed on a specific freight charge. He placed reliance on Adebisi’s opinion that the venture would be a profitable one. On the plaintiff’s evidence, could it be reasonably inferred that he did not know that the freight rate was 1/2d per 100 lbs per mile when he approached the defendant company’s representative to be employed as a carrier With his experience in transport business would he just enter into a business without enquiring as to what other contractors charge and receive as freight from the defendant company The learned trial Judge did not direct his mind to these vital questions and had he done so it is not certain that he would have come to the conclusion that there was a unilateral mistake on the part of the defendant/respondent, and that such mistake was unknown to the plaintiff.
Is it reasonable to think that a businessman of the plaintiff’s experience and standing would enter into a bargain such as that hereinbefore stated, without first agreeing on the freight to be paid to him for transportation of the produce concerned. We certainly think not; and we are satisfied that the learned trial Judge did not, in the case in hand, made good use of his having heard the witnesses or watched them give evidence.
On the arguments canvassed before us by learned counsel for both parties, we are of the view that the plaintiff did not establish the case as set out in his pleading. We are also of the view, that it is the duty of a court in arriving at its decision to properly evaluate the totality of the evidence before it and we are satisfied that this was not done in this case, especially in regard to the case for the defence.
For the above reasons, the appeal fails and it is hereby dismissed. We affirm the judgment of the Western State Court of Appeal in Suit CAW/59/74 delivered on 14th November, 1974. The plaintiff/appellant will pay to the defendant company/respondent costs of this appeal which we assess at 150 Naira.
Other Citation: (1977) LCN/1889(SC)