Patrick Abusomwan Vs G.o. Aiwerioba & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C. 

Both the plaintiff/appellant and first respondent were businessmen in Benin. They proposed to jointly float a company so that they would trade together in certain commodities. It seemed that joint venture company could not be incorporated in time and it was decided that for the time being each should carry on business in his name or private capacity.

It was however agreed that the plaintiff could bring his goods into the premises of the first defendant who would arrange for marketing the same and pay into the account of plaintiff with International Bank for West Africa Limited, Benin-City. The second defendant was a company exclusively owned by first defendant who was sole signatory to its account with a bank.

Both the plaintiff and the second defendant, by separate letters of credit ordered boxes of nails and iron rods from Britain. The vessel bringing these building materials docked at Ogharefe Jetty, near Sapele. Seagul Agencies, a clearing agent, was contracted by each party to clear the cargoes of nails and rods. Plaintiff sold some of his consignment at Sapele.

The remaining items for plaintiff, 121 boxes of nails, were finally delivered to the premises of second defendant at 14 Ugomoson Street, Benin-City evidenced by Way Bills from port of delivery by Seagul Agencies aforementioned. The consignment belonging to second defendant were similarly delivered along with the plaintiff’s. According to the plaintiff, the defendants, in whose premises the plaintiffs goods were delivered, in accordance with their understanding sold the goods.

But instead of paying the entire proceeds to the account of the plaintiff at International Bank for West Africa Limited, who gave him loan facility to order the goods the defendants paid only N43,4040.00 instead of N89,298.00 realised from the sales. Similarly, the remaining consignment of plaintiff’s iron rods delivered to the premises of the second defendant under the same understanding valued at N268,246.00 was sold by defendants and only N126,770.90 was credited to plaintiff’s account. For the nails the defendants were to account for the outstanding N45,894.00 and for iron rods N141,475.30.

After several demands for payment of these sums of money, with defendants refusing or failing to pay, the action leading to this appeal was taken. Several amendments were made to the pleadings by both sides. At the end of the trial the Judge inter alia found in his conclusion as follows:

“The goods ordered by plaintiff and those ordered by 1st defendant were about equal. As at 26th January 1978 the sum of N104,024.44 was paid into the Account of 1st defendant with New Nigeria Bank Limited Benin-City while the sum of N139,915.00 was ……..

The plaintiff agreed taking part though not fully in the marketing of the rods and nails. 1st defendant was the Managing Director while the plaintiff was the Executive Director/General Manager. Plaintiff signed Exhibits 16 to 22 as the General Manager of Grand Brothers.

The plaintiff did not plead that any quantity of the 1/2” rods were sold by him at the wharf. Any evidence given to that effect goes to no issue.

Apart from the consignment of the goods to the premises of the 2nd defendant, I do not see anything done by 1st or 2nd defendant regarding their participation in the sales more than what the plaintiff did. While the sales lasted the sellers were “marked out as staff of Grand Brothers” according to the plaintiff. See paragraph 7, 8 and 15 of the further amended statement of defence and Mr. Aiwerioba’s evidence.

In the event I hold that the plaintiff has not proved his case. The claim is hereby dismissed.”

In the event, according to learned trial Judge, the plaintiff failed to prove his case and it was dismissed. This led to the appeal to the Court of Appeal. The grounds of appeal, three grounds on misdirection in law and fact and one on general grounds, complained of the trend of evidence based on pleadings before learned trial Judge differed from his conclusions. There was copious evidence that the goods were delivered to the premises of the respondents and this was confirmed by John Ibagun (P.W.1) and Edward Obaze (P.W.2) which trial Judge erroneously or inadvertently overlooked. The evidence in the Court of trial was mainly documentary and on appeal the appellant raised the following issues for determination:

(1) “Was it established on the evidence on record that any part of the proceeds of the sale of plaintiff’s goods paid into the account of the defendants