Ijale V Leventis & Co. Ltd (1965)

LawGlobal-Hub Lead Judgment Report

BRETT, J.S.C. 

This is an appeal by the plaintiff against the judgment of De Lestang, C.J., Lagos, dismissing his claim for sums amounting to £20,587-2s-8d. The appellant was employed by the respondent company as a “produce sub-buying agent” in Lagos from the 19th May, 1950, until the 12th June, 1953. He received advances for the purchase of produce, for which he was required to account, and he was remunerated by a monthly salary of £25 and by commission on the produce he bought; this remuneration was not paid to him at regular intervals, but was credited to him in the books of the company pending a settlement. On the 25th July, 1953, the company sued him for various sums, but the only claim on which judgment was given in those proceedings was a claim for:-

“1. £25,025-19s.-8d. being balance found to be due from the defendant to the plaintiffs on an account stated between them in writing and contained in a document signed by the defendant and dated 10th June, 1953 or in the alternative being money had and received by the defendant from the plaintiffs for the use of the plaintiffs, with interest thereon at the rate of ten per centum per annum until payment or judgment.”

The case was tried by De Comarmond, C.J., Lagos, who held that the document relied on as an account stated was not one, but gave judgment on the 29th November, 1955, for £25,917-17s-2d, as money had and received to the use of the plaintiffs, with interest to the date of judgment. The appellant appealed to the Federal Supreme Court, which gave judgment on the 12th May, 1959, and reduced the award to £15,260-12s-2d, by allowing £10,657-10s-0d, in respect of ungraded cocoa which had been purchased by the appellant but not credited to his account. There was a further appeal and cross-appeal to the Privy Council, which gave judgment on the 16th July, 1964, crediting only £6,500 for produce purchased and increasing the sum awarded to £19,418-2s-2d. In computing the sum awarded the various courts which considered the matter allowed the appellant not only the value of produce purchased but a credit of £600 in respect of accrued salary to the date of the termination of his employment. The credit of a sum in respect of produce purchased was in pursuance of paragraph 8 of this Statement of Defence, which reads as follows:-

“8.The defendant admits paragraph 5 of the Statement of Claim but avers that there can only be finality in the computation of the accounts when the ungraded produce which appears in the produce statement has been graded and the defendant credited with the value thereof.”

On the 14th May, 1959, two days after the delivery of the judgment of the Federal Supreme Court, the appellant instituted the present proceedings; his claim as amended was for the sum of £20,587-2s-8d, made up as follows:-

“1.Balance of overriding commission for cocoa and palm kernels short paid as per produce report books tendered in Suit No. 428/53 between same parties 310 tons, 1 cwt., 1 qrt. at 75s. per ton.£1,157 1 4 8

2.Balance of salary account May, 1950 to June 1953 at £25 per month = £950 less amounted credited in Ex.‘A’ Suit No. 428/53 = £600 Balance 35000

3.Value of 4 Lorries returned to defendant .4,00000

4.Value of graded cocoa not accounted for by defendants as per Exhibit ‘D’ and ‘E’ in Suit No. 428/53 1,120 bags (16 bags to 1 ton ) at £174-9s 12,21100

5.Labour and grading expenses on 3,586 tons, 1 cwt.lqr. at 16s. per ton .2,867180 £20,5872 8

De Lestang C.J. held that the second item and part of the fifth were proved, but that the first, second, fourth and fifth items formed part of the produce transactions between the parties and that the judgment in the previous suit estopped the appellant from putting forward the claims in fresh proceedings. He referred to section 53 of the Evidence Act, which reads-

“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

As the Judicial Committee said in its judgment in the former case, “In the event it became necessary to know the state of the final account between the parties”, and we agree that on the pleadings the balance of indebtedness between the parties in respect of the produce transactions was a fact directly in issue in the earlier case and that the judgment is conclusive proof of what that balance was. But the Chief Justice also cited the following passage from the judgment of the Judicial Committee in Hoystead v. Commissioner of Taxation [19261 A.C. 155, at 170:-