Joseph Daboul Ltd V. Chief A. Majekodunmi (1977) LLJR-SC

Joseph Daboul Ltd V. Chief A. Majekodunmi (1977)

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D. A. R. ALEXANDER, C.J.N. 

At the conclusion of the hearing of this appeal, and without calling on learned counsel for the respondent, it became clear to us that this appeal was without substance or merit and we accordingly dismissed it. We now give our reasons for doing so.

The plaintiff/respondent’s claim was for –
“(i)   A declaration that between the 10th day of January, 1972 and 24th day of April, 1972 the Defendant agreed to run the transport business of the Defendant’s fourteen (14) FIAT Type 682 T3 Registration Nos. LO.6995; LO. 6996; LO.7001 to LO. 7003; LO. 7602 to 7605; LO.7607; LR.4230; LR.6938; LR. 6939 and KNB. 1675 on behalf of the Plaintiff as per a Written Agreement made between the Defendant and the Plaintiff.
(ii)    An account of all the proceeds expenses and profits that come to the hands of the defendant or received by any other person on its behalf or account in respect of the running of the 14 FIAT LORRIES or any  part thereof between the 10th day of January 1972 and 24th day of  April, 1972 and for what is due from the Defendant to the Plaintiff in respect of the running of the said Transport Business.
(iii)   Payment by the Defendant to the Plaintiff of any sum found due to the Plaintiff upon taking such account, and
(iv) 5,400 pounds being the difference in the amount actually refunded to the Plaintiff by the Defendant on the 24th day of April,1972 and his deposit of 20,000pounds with the defendant.”
The following facts emerged from the findings of the learned Chief Judge, Adefarasin, CJ., who tried the case.

At the material time the respondent was a businessman engaged in road transport business. The appellant, a limited liability company, whose managing director and principal shareholder was one Joseph Daboul, agreed in December 1971 to sell fourteen lorries to the respondent at 5,000pounds each, that is, for 70,000pounds.  See Exhibit 1. In January 1972, the respondent purchased these lorries on an instalmental basis and paid to the appellant an agreed deposit of 20,000pounds to cover the cost of four lorries.  It was also agreed by and between the parties that the balance of 50,000pounds should be paid in twelve instalmental payments of 4,166pounds each, the first  instalment being payable at the end of February 1972, and the last at the end  of January 1973, and  that the fourteen lorries would be delivered to the respondent on the completion of the instalmental payments.

The parties further agreed that, pending the delivery of the lorries to the respondent, the appellant, in its own name, was to run a transport business with the fourteen lorries as agent for, and on behalf of, the respondent. In pursuance of the agreement, the appellant purported to carry on the business on behalf of the respondent and made certain disputed payments into a joint account of which the respondent and Joseph Daboul were to be the signatories, on account of the proceeds of the business. The formal agreement executed by and between the parties was admitted in evidence as Exhibit 3. In April 1972, the respondent received from the appellant a cheque for 14,912.6.3d in respect of which he signed a receipt (see Exhibits 11 and 13), prepared for his signature without any previous  agreement or discussion, for 20,000pounds. He signed the receipt as the result of a threat by the appellant that unless he signed the receipt for 20,000pounds he would get no more money from his investment. In fact he received 14,912.6.3d and  he never agreed to forego his interest in the transport business.

This receipt which was tendered by the respondent as Exhibit 11, and by the appellant as Exhibit 13, reads as follows –

“THE IS TO CERTIFY that I, CHIEF ADEPOJU AKINWUNMI MAJEKODUNMI OF P.O. BOX 150 Abeokuta do hereby receive from Joseph Dahboul Ltd., of 35, Payne Crescent, Apapa, the total sum of 20,000: (Twenty Thousand Pounds) representing my deposit paid to him in pursuance of Sale Agreement dated 10th January, 1972 of 14 lorries executed between me and the aforesaid Joseph Daboul Ltd., and which said agreement I have agreed should be of no further effect.

DATED this 24th day of April, 1972.

(SGD.) CHIEF ADEPOJU AKINWUNMI MAJEKODUNMI.”

The appellant’s case was that the transaction between the parties was in the nature of a mere hire-purchase agreement, that Exhibit 11 was a valid document of discharge in the nature of “accord and satisfaction” as between the parties and, also, that a letter (Exhibit 29) purported to have been written by the appellant’s solicitor to the respondent supported the appellant’s contention.  In Exhibit 29, the appellant’s solicitor purported to write to the respondent complaining about the appellant’s alleged default in making the instalmental  payments provided for in the agreement and threatening to treat the appellant as being “in breach of the agreement with its immediate following effects accordingly.”

The learned Chief Judge found for the respondent and made a number of orders in the following terms –

“I find for the plaintiff and make the Order for the declaration sought by him in his first claim as stated by me in this judgment at the outset.  Further I make order for an account to be filed by the defendants within 30 days of this date, of all the profits, expenses received by them or any other person on their behalf in respect of the 14 lorries set out on the plaintiff’s writ and in the first paragraph of this judgment. It is ordered that the account shall cover the period 10th January, 1972 until this date and shall show what is due to the Plaintiff on the Transport Business.  The said account shall be served upon the Plaintiff’s Solicitors within 30 days of this date. The Plaintiff shall be at liberty to make such application as he might deem fit for the surcharging or falsification of  the said account. The third and fourth orders prayed for shall abide the result of the account to be filed by the defendant. Costs against the defendant for the proceedings so far are assessed at N500 of which N189.64 is the out of pocket expenses.”

Counsel for the appellant relied on and argued only grounds 2 and 3 of the five grounds of appeal filed by him.  These somewhat nebulous grounds, which were argued together, read as follows:-

“2 That even if the contract is valid the learned trial Chief Judge was wrong in Law not to have dismissed the respondent’s case on the face of the document of Discharge discharging the parties of their obligations under the Contract signed by the parties, and which said documents was admitted in evidence at the trial in the lower court.

3. That the learned trial Chief Judge was wrong in Law to have read extraneous words into the said document of Discharge as against one of the Provisions of Evidence Act, a situation which led him to a wrong conclusion.”

Counsel for the appellant submitted that Exhibits 11 and 13, which are identical in wording, and Exhibit 29 amounted to a complete discharge, by way of accord and satisfaction of the appellant from his contract with the respondent.

In regard to Exhibit 29, the respondent denied ever having received it. The learned Chief Judge said in his judgment, in respect of the principal issues in the case –

“Although the letter was supposed to have been forwarded to the Plaintiff by registered post there was no evidence that it was ever received by plaintiff. The defendant made no effort to establish that their Solicitor ever wrote the letter to the plaintiff. I am unable to find that the plaintiff having defaulted to keep up the terms of the agreement the defendants solicitors wrote to him to request him to comply with the terms of the agreement. The defendant denied the plaintiff’s allegation concerning the circumstances in which a sum of 14,912.6.3s was paid by cheque.

I have examined very carefully the oral and documentary evidence in the case and have reached the decision that the evidence of the plaintiff is to be preferred to that of the defendant Mr. Joseph Daboul on all the material issues.  The witness Joseph Daboul did not strike me as being truthful in his testimony concerning the business relationship between the parties, the instalments actually paid by the Plaintiff and the circumstances of the issue of the cheque  for 14,912.6.3d. The witness, a shrewd business man appeared to me to have taken every advantage of the fact that the plaintiff was very trusting and does not seem to have much education. The plaintiff impressed me as being truthful. The defendant gave a contrary impression. Apart from the plaintiff’s unshaken demeanour in the course of his testimony the documents tendered in evidence support, very strongly, the case as narrated by him. Whenever there is a conflict in the oral evidence of the parties I would resolve it in favour of the plaintiff.”

The learned Chief Judge also held expressly that the agreement, Exhibit 3, is an unconditional agreement for the sale of the 14 lorries in this case and, further, that property in the lorries had passed to the plaintiff the fact that delivery had not been effected notwithstanding. He also held that the contention of the defendant that the agreement was in the nature of a hire purchase agreement is untenable.

We can see no reason whatever to disagree with the findings and opinions expressed by the learned Chief Judge on these issues.  Exhibits 11 (and 13) were indeed obtained from the respondent by threat and fraud, while Exhibit  29 never reached the respondent and so its contents never came to the notice of the respondent. Further, “accord and satisfaction” imports an agreement supported by consideration. The learned Chief Judge found in effect that there was no agreement by the respondent to forego his rights under the contract, Exhibit 3.  The question whether an accord has been arrived at is one of fact, not law see Benning v. Dove (1833)5 C. 5 P.428: Barclay v. Bank of New South Wales (1880) 5 App. Cas. 374, PC., Cutts v. Taltal Rly. Co. Ltd. (1918) 62 Sol. Jc. 423.

We accordingly held that Exhibits 11, 13 and 29 cannot possibly form a basis for the valid discharge by way of  “accord and satisfaction” of the appellant of its obligations under the agreement. Exhibit 3, and this submission accordingly fails.

Counsel for the appellant went on further to submit that Exhibit 11 falls within the provisions of Section 114 of the Evidence Act, which reads as follows –

“114.   Whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or magistrate or by any such officer as aforesaid, the court shall presume –
(a)    that the document is genuine;

(b)    that any statements as to the circumstances in which it was taken, purporting to be made by the person signing it,  are true; and

(c)    that such evidence, statement or confession was duly taken.”

It is obvious (and should have been clear to counsel for the appellant) that Exhibit 11 (or 13) is not a document produced before a court, “purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding …….”, within the meaning of Section 114, to which the presumptions specified in the section would apply.  Counsel nevertheless insisted on making this submission which we hold is utterly irrelevant and of no merit whatever.

For the foregoing reasons, we found it unnecessary as stated at the outset, to call on learned counsel for the respondent, and dismissed this appeal.

Other Citation: (1977) LCN/1903(SC)