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.
- 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.
- 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.
- 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.
- 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 –
‘In the alternative the plaintiff claims the sum of 3 pounds,255:11:4d. being the amount due from the 1st defendant to the plaintiff as an agent of the plaintiff.’
Sanyaolu I do not oppose the application; I have no further application of my own.
Court: Very well. Order as prayed.”
In a reserved judgment, the learned trial Judge dismissed the plaintiffs’ case with costs. He found as a fact that the 1st defendant and not the 2nd defendant was the agent of the plaintiffs at Bauchi, observing as follows:-
“Having carefully considered the evidence before me I find that it is more probable than not that the first defendant was acting as an agent of the plaintiffs in operating the business in Bauchi and that he was entitled to deduct the overhead expenses involved from sums due from him to the plaintiffs in that capacity.
Having regard to these findings of fact, in my judgment, the plaintiffs’ claim which is for the specific sum of 3pounds,255:11:4d. under both heads under which it is claimed, must fail. They have failed to prove on the balance of probabilities that the first defendant owes them that sum.”
The plaintiffs have now appealed to this court against that judgment and the main complaint was that on the facts before the learned trial Judge he was wrong to dismiss the plaintiffs’ case. Learned counsel for the defendant of course opposed this contention but he was unable to answer the criticisms of the judgment, firstly, that it was against the weight of evidence and, secondly, that on all the facts found by the learned trial Judge it was wrong to dismiss the plaintiffs’ case.
To deal with the second point first, we observe that the learned trial Judge dismissed the plaintiffs’ case for a specific balance of amount owing on the grounds that the plaintiffs should have sued the defendant for an account; for he indeed observed in his judgment as follows:-
“It is not unlikely on the evidence that the first defendant owes them some money. But the plaintiffs have not claimed an account, although given every time and opportunity to the last to do so, and I refuse therefore to order one.
In these circumstances, although I have considered the matter, I feel I would be wrongly exercising my discretion to non-suit the plaintiffs and give them a further opportunity to proceed against the first defendant.”
If, by this, the learned trial Judge implied that it was not possible under any circumstances for a principal to sue his agent for money had and received or for the balance of the costs of goods entrusted to the agent, we cannot agree with him. An action for account lies in respect of a claim which may be unascertained at the time of the institution of the proceedings and indeed can only be ascertained after the filing of such an account. If the plaintiffs’ claim against a defendant is indeed ascertained, we are at a loss to see why such a plaintiff may not claim from the defendant such an ascertained amount. In Bowstead on Agency 13th Edition at p. 156, the following statement of the law, with which we are in agreement, occurs:-
“The principal cannot make his claim for money had and received until the agent has either received the money or has been credited with it in his own account with the third party. This does not mean that the principal must wait until the agent admits he has received the money; if, for example, the principal employs an agent to sell goods for him and the agent does not account to the principal within a reasonable time, it will be presumed in the absence of evidence to the contrary that the agent has received money for the goods.”
We think it right to point out that where as here there is no dispute as to the receipt of goods, the value of which is ascertained, it is open to the principlals, without going into an action for account, to sue the agent for the ascertained sum which they claim the defendant was owing them.
Furthermore, the learned trial Judge took the view that, on the balance of probabilities, the plaintiffs did not prove their case. The assessment of evidence and the ascription of probative values to such evidence are the duty of a court of trial but a court of appeal would intervene and interfere if it is satisfied that the trial court had failed to draw the correct inferences from proved or accepted facts or has wrongly assessed the probative values of undisputed evidence.
One of the exhibits tendered by the plaintiffs in this case was a letter written by the 1st defendant to the plaintiffs. It was admitted in evidence as Exhibit 26 and reads as follows:-
“Dear Sir,
Thank you very much for your letter of April 8th, 1967, it came to my hand today through Alhaji Ladan Kura, all the contents there were carefully understand, but the balance is 2pounds,903:18:3d. Total goods supply is 4pounds,730:3:5d. Total amounts pay and goods returned is 1pounds,826:5:2d. of course I left Bauchi on 5th April, on my way to Kano, but unfortunately the motor car break down on mile 75 Ningi Kano Road which I have to enter another lorry to Jos because to get mechanic who will repair the car, where I spent 5 days before getting the car to the normal condition. I returned back to Bauchi on 10th April. That is why when you came you did not meet me. The reason why the balance is 2pounds,903:18:3d., if you remember 376pounds:0:0d. was made on reduction on white shirtings. I hope you will soon see my message by the Grace of God.
I look forward to hear from you.”
The defendant did not dispute writing or sending this letter and his evidence concerning the letter is most pertinent. He said concerning Exhibit 26 as follows:-
“I see Exhibit 26. I wrote it to the plaintiff on 11th April, 67. I agree in that letter, I did not mention I was an agent of the plaintiff or acting for Ladan Kura. The money spoken of as owed and due in Exhibit 26 was due from the customer of the Bauchi shop. As a result of the business carried out in Bauchi the plaintiff are not owed 3pounds,255:11:4d. I do not know what they are owed because all the books are with Alhaji Ladan Kura. I agree they are owed something. I agree all the goods in Exhibit 2 were received by me at Bauchi and sold by me.”
Exhibit 2 was the statement of account produced in evidence for the plaintiffs as representing the account of the 1st defendant and the amount he was owing to the plaintiffs. Thus, by Exhibit 26, the 1st defendant admitted receiving all the goods claimed by the plaintiffs to have been sent to him and received by him. If the amount of 376pounds (or N742) referred to by the 1st defendant in Exhibit 26 was added to the amount of 2pounds,903:18:3d. (or N5,806.83) admitted by him in Exhibit 26, the total would just be little over the amount actually claimed by the plaintiffs in this action. In dealing with Exhibit 26, the learned trial Judge observed in the course of his judgment thus:
“I mention here a letter, Exhibit 26 written by the first defendant to the plaintiffs on the 11th April 1967 in which the first defendant disputed the state of an account between them at that date. But the letter, which apparently set out an account, in reply to which Exhibit 26 was written has not been put in evidence by the plaintiffs and without it, it is not possible to see the nature or state of the account which was under discussion. Neither can I read into Exhibit 26 an admission on the first defendant’s part that at that date he owed the plaintiffs the sum indicated.”
It is difficult to read into Exhibit 26 the comments of the learned trial Judge. Just before the comments referred to above, the learned trial Judge had referred to the defendant’s claims as against the plaintiffs’ for the expenses of running the business at Bauchi, etc., but it is clear that the 1st defendant had filed no counter-claim or set-off and under no circumstances is a judge entitled to speculate with respect to matters on which he had no evidence before him. Contrary to the inferences of the learned trial Judge, it is manifest that Exhibit 26 clearly admits indebtedness in the amounts so stated thereon and the learned trial Judge should have given effect to this.
We have come to the conclusion that the plaintiffs’ appeal succeeds on the two grounds on which the appeal is based and argued. The appeal succeeds and it is allowed. The judgment of the High Court, Kano, in Suit No. K/65/70, including the order for costs, is set aside. We enter judgment for the plaintiffs against the 1st defendant, Mallam Yusufu Ibrahim, for the sum of N6,511.14 (or 3pounds,255:11:4d.) as claimed by the plaintiffs and this shall be the judgment of the Court. The 1st defendant shall also pay the costs of the respondents fixed in this Court at N65 and in the court below at N227.
Other Citation: (1974) LCN/1929(SC)