Guinness Nigeria Plc V. S. K. Ajayi (Nig) Ltd (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal by the defendant/appellant against the judgment of Kolawole J. of the High Court of Ondo State sitting at Ondo in Suit No HOD/25/2007 delivered on the 13th day of October, 2010. The Plaintiff/Respondent took out a writ of summons against the defendant/appellant on 2/5/07 claiming in their 2nd amended statement of claim as follows:-

“(a) Order of court compelling the Defendant to supply the Plaintiff with the following goods:

a. Large Stout – 335 crates or cartons

b. Small Stout – 8I73 crates or cartons

c. Harp – 360 crates or cartons

d. Malta Guinness – 1146 crates or cartons

Being the shortfall of goods due to the Plaintiff from the Defendant and already paid for by the Plaintiff.

OR IN ALTERNATIVE

(b) The sum of N31,960,293.37 (Thirty-One Million, Nine Hundred and Sixty Thousand, Two Hundred and Ninety Three Naira, Thirty-Seven Kobo) being the outstanding sum owed the Plaintiff by the Defendant in respect of incomplete stock delivery of alcoholic and non-alcoholic drinks to the plaintiff and for which the defendant has refused and neglected to pay in spite of repeated demands.

(c) Interest on the said sum at the rate 7% from the date of judgment.

The defendant in its amended statement of defence and counterclaim denied the plaintiff s claims and counterclaimed the sum of N40,000,000.00 (Forty Million Naira) being general damages suffered for loss of investment in training of and attendances at sale conference by Mr. Adekunle Omotayo and loss of business opportunities being enjoyed by the defendant as a result of the network facilitated by the said Adekunle Omotayo before his sudden separation from the Defendant’s company which was caused by the plaintiff.

The plaintiff filed a reply and defence to the counterclaim denying all the material facts in the counterclaim.

Briefly, the facts of the case as deduced from the pleadings are that the plaintiff as a major distributor of assorted beer and soft drinks all over Ondo State had trading relationship with the defendant, a brewery leading to the supply of Stout beer, Harp beer and Malta Guinness to the plaintiff by the defendant over the years. In the course of this business relationship, the plaintiff noticed a short fall in the supply of stock paid for over a period of time. The plaintiff informed the defendant of the short fall. A comprehensive audit of supply to the plaintiff in the past five years confirmed the short fall which came to a total of about N31.9 Million Naira. In spite of repeated demands, the defendant refused to pay back the money collected from the plaintiff for the goods not supplied or to supply the short fall of stock as detected. On persistent complaint by the plaintiff, the defendant offered to credit its account with the sum of about 10.6 Million Naira in full and final settlement of the short fall subject to a proposed settlement agreement. The plaintiff refused the offer on the ground that N10.6M was far below his claim of N31.9M. The plaintiff then instituted this action. The defendant in denying the plaintiff s claim pleaded that the claim was statute barred. The defendant further in their counterclaim pleaded that the plaintiff’s action led to the loss of the services of their highly valued staff Omotayo Adekunle which led to loss of business opportunities. They counterclaimed the sum of 40 Million Naira for the loss. During the hearing, the plaintiff called two witnesses and the defendant three. At the conclusion of hearing and the addresses of counsel, the learned trial judge held that the plaintiff’s claim was not statute barred and granted its main claim and dismissed the defendant’s counterclaim.