Messrs. Misr (Nigeria) Ltd V. Mallam Yusufu Ibrahim (1974)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The appellants were the plaintiffs in an action instituted by them in the High Court, Kano, against the defendant, now respondent, on a writ endorsed as follows:-

“The plaintiff claims from the defendant the sum of 3,255pounds:11:4d. being the amount due and owing by the defendant to the plaintiff on the defendant’s account with the plaintiff.

The defendant refuses or neglects to settle the amount after repeated demands, whereof the plaintiff claims as per the writ.”

Pleadings were duly filed by the parties and paragraphs 3, 4 and 5 of the statement of claim, which tells the whole story of the plaintiff’s case, are as follows:-

“3. By credit facilities granted to the defendant from October, 1965, at the defendant’s request, the plaintiff supplied various goods comprising of ile materials, ladies bags, perfume, bags of salt etc. for which the defendant was required by the terms of the contract to make payments constantly in order to balance his account.

4. By August 30th, 1967, the value of goods supplied to the defendant amounted to 5pounds,224:7:3d. for which the defendant paid a total of 1pounds,968: 15: 11d. leaving an outstanding debit balance of 3pounds, 255:11:4d. to be paid by the defendant to the plaintiff.
5. A reconciled Statement of Account by the plaintiff’s accountant has been sent to the defendant stating the number and quantity of goods supplied to the defendant and the payment made up to 19th June, 1967, when the defendant stopped further payments on his said account with the plaintiff. The plaintiff will rely on the Statement of Account at the trial of this action. The said Statement of Account is hereby attached and marked Exhibit ‘A’.”

The defendant’s statement of defence denies all averments of liability to the plaintiffs, states that at all times material to the action he was only a storekeeper to one Alhaji Ladan Kura on account of whom he collected the goods described by the plaintiffs, and paragraphs 3, 4 and 5 of his statement of defence read as follows:-

“3. With reference to paragraph 3 of the statement of claim, the defendant denies that he was ever granted credit facilities at his request and would aver that such goods as were received by him were received for and on behalf of Alhaji Ladan Kura who was the real agent of the plaintiff in Bauchi and merely employed the defendant as a store-keeper.

4. The defendant is not in a position to admit paragraphs 4 and 5 of the statement of claim and puts the plaintiff to the strictest proof thereof. The defendant would in particular, aver that he was at the material time employed by Alhaji Ladan Kura, as a storekeeper and whatever transaction the defendant had with the plaintiff was for and on behalf of his employer.
5. With further reference to paragraphs 4 and 5 of the statement of claim the defendant would rely on such documents and statements of account that may be available to him at the trial of this action and would aver that the Statement of Account referred to as Exhibit A, in the statement of claim, is wrong.”

Both parties gave evidence at the trial but before the actual hearing, the defendant had successfully applied for an order to join Alhaji Ladan Kura as a second defendant. Alhaji Ladan Kura did appear in court soon after his joinder but before the court he denied the plaintiffs’case and stated that whilst he admitted owing the 1st defendant an amount of 1pounds,239:14:9d. (or N2,479.49) he had no dealing whatsoever with the plaintiff. Alhaji Kura did not appear again throughout the trial although he filed a statement of defence which confirmed what he had already told the court.

Only one witness gave evidence for the plaintiffs – one Obi Emeaobuba described as an accountant employed by the plaintiffs’ Company. He testified to the claim on the writ and produced a large body of documentary evidence supporting the evidence that goods of the plaintiffs were in fact sent to and received, and indeed receipted, by the 1st defendant. He admitted some of the documents he had tendered by their headings or other parts of them implied that the defendant was either the plaintiffs’ agent at Bauchi or was in charge of the plaintiffs’ agency in that place. The plaintiffs’ counsel then announced the close of the plaintiffs case and learned counsel for the defendant applied to amend his statement of defence by adding thereto a new paragraph 3(a) as follows:-

“Alternatively the defendant avers that such goods were received by the 1st defendant from the plaintiff as merchantile agent of the plaintiff and will contend that the plaintiff’s claim is misconceived as the proper action should be for an account.”

This application was granted by the learned trial Judge even though it was opposed (we do not know why) by learned counsel for the plaintiffs. The defendant thereafter gave evidence. In the course of his evidence he variously described himself as the agent of the plaintiffs or the servant of the 2nd defendant or, indeed, as the agent of both the plaintiffs and the 2nd defendant. He produced some documentary evidence and this seemed to confirm that he received or was collecting the goods of the plaintiffs on which the case was founded. He gave further evidence to the effect that he had sold the goods and that although some of his customers were people from the East-Central State of Nigeria who fled to their home towns during the Civil War, yet not all his customers did not pay him for the goods which they purchased. Learned counsel on both sides then addressed the court at some length. In the course of the address, the learned trial Judge had some qualms about the plaintiffs’ case as presented and the following dialogue then ensued between the learned trial Judge and learned counsel for the plaintiffs:-

“Court: What is the position if I find the 1st defendant was acting as your agent throughout

Balogun: Having regard to that possibility, I now apply to amend my statement of claim as follows: by adding as paragraph 9 the following paragraph –