Jallco Limited & Anor V. Owoniboys Technical Services Limited (1995)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

The respondent was appointed stockist and reseller for J. Allen and Company Limited for Kwara State. In the dealership agreement the respondent was selling heavy commercial vehicles, passenger cars, tractors, spare parts and Yamaha motor-cycles. The pattern of trading activities between the parties were occasional cash purchases, deposit of funds by cheques and drafts. Three distinct accounts were therefore opened and maintained by the 1st appellant on respondent’s behalf into which all agreed discounts due to the respondent were to be paid.

In 1985 the respondent filed a writ of summons in Ilorin High Court, Kwara State, claiming, initially against the 1st appellant, various sums of money totaling N411,109.81k, the break down of which is as follows:

“(i) 21/2% discount of 285 commercial vehicles on retained account which amounts to N84,803.47 and 5% retained discount for 234 passenger vehicles which amount to N32,192.95K

(ii) N50,051.20 being amount due to the plaintiff to be credited as allowance for first free service of 336 vehicles carried out at Ilorin.

(iii) N30,046.871/4 of 10% of monthly purchases wrongly debited instead of credit as shown in statement of accounts in breach of agreement.

(iv) N50,270.30 being amount due to the plaintiff for wrong accounting debit entries made in vehicle account for which the plaintiff is entitled to be credited having been satisfied from deposits made into vehicle Account.

(v) N131,673.72 being money meant as deposit into the vehicle account paid to the 1st defendant by the plaintiff Banker at Ilorin but for which the plaintiff account was not credited.

(vi) N32,071.30 being amount wrongfully double debited as duplication of items supplied to the plaintiff in vehicle/motor cycle account.”

Later, during the course of the proceedings the plaintiff applied and was granted leave to join John Holt as 2nd defendant to the suit. Again, when P.W.1 was testifying before the trial High Court it was revealed that J. Allen had ceased to exist. The Company changed its name to Jallco Limited. The plaintiff applied to the court to change the name of the 1st defendant. The application was granted. There was a counter claim filed by the 1st defendant against the plaintiff claiming the sum of N55,170.68 being money owed the 1st defendant by the plaintiff as per some listed invoices.

At the end of the trial learned trial Judge, after considering the evidence adduced through mainly various documentary exhibits, awarded to the plaintiff a total sum of N400,108.41. In addition the court ordered the 1st defendant to pay the plaintiff 10% per annum interest from 1981 to the date of judgment on the total judgment sum of N400, 108.41 and thereafter 10% per annum interest on the total judgment debt until the final liquidation of the judgment debt. On the counterclaim the learned trial Judge found that, in its defence to the counter-claim, the plaintiff pleaded res judicata because the amount claimed by the 1st defendant constituted the action in suit No. 1/308/81 between the plaintiff and the 1st defendant which was fully heard and determined by a High Court in Ibadan in favour of the plaintiff. The 1st defendant also failed to adduce any evidence in support of the counter-claim and that, according to the learned trial Judge, amounted to abandonment of the counter claim. In consequence, the court dismissed the claim.

Dissatisfied with the decision of the High Court, the defendants appealed to the Court of Appeal, Kaduna Division. The Court of Appeal, in a considered judgment, per Akpabio, J.C.A. (with which Aikawa and Achike JJ.C.A. concurred) affirmed five of the six awards made by the High Court in favour of the plaintiff. Item 11 which the Court of Appeal found not proved is in respect of a claim for N50.051.20 being amount said to be due to the plaintiff to be credited as allowance for “first free service” of 336 vehicles carried out at Ilorin. The Court of Appeal held that the only satisfactory way to prove that first free service has been carried out on any particular vehicle was to tender the job card. The Court of Appeal went further, in its judgment, on this issue and said:

“It is our view that 1st defendant was right in insisting on seeing the job cards before making any payment; and we will also insist on doing so. The learned trial Judge had dismissed this defence of 1st defendant as an “after-thought”. But we find that the defence about the necessity to produce coupons was pleaded by the 1st defendant at paragraphs 15 and 16 of his further amended statement of defence and also raised at the trial; plaintiff/respondent had adequate notice about that line of defence, and so should have been prepared to produce and tender the job cards at the trial. It must be admitted that paragraphs 15 and 16 of statement of defence of 1st defendant spoke only of coupon and did not mention job card. But this court holds that without the job cards, the claim in item (ii) has not been proved. Plaintiff/Respondent claimed that he had the job cards in the same way he had tendered a file containing sales invoices in Exhibit 8, 9 and 10 We have no alternative but to invoke the presumption contained in S.148(d) of Evidence Act, against the plaintiff, i.e. either that the job cards did not exist, or that if they existed and were tendered, they would have been unfavourable to plaintiff who withheld them.

In view of these facts, we hold that item No. (ii) about first free service was not proved with the certainty it deserved, and should have been disallowed by the learned trial Judge.