S. Pascutto V. Adecentro Nigeria Limited (1997)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C. 

By a writ of summons issued on the 7th day of August, 1985 in the Ibadan Judicial Division of the High Court of Justice, Oyo State, the plaintiff instituted an action against the defendant claiming as follows:

“The plaintiffs claim is for N612,563.70k equivalent of US $294,762.00 and interest thereon for 5’bd years, being the balance of the total sum of money which the defendant agreed to pay to the plaintiff pursuant to a good accord and satisfaction made in writing between the plaintiff and the defendant dated 3rd August 1979. The defendant has refused to pay this balance despite repeated demands.

Particulars

1. Total sum owing to the plaintiff – N448,304.38k (US $542,000).
2. Total sum paid to the plaintiff on 15/10/79 – US $247,238.00.
3. Outstanding balance – N243,806.45 (US $294,762.00)
4. Interest on outstanding balance from 3/10/79 ’97 3/5/85 at 27.5’bd % per annum N368,757.25”.

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

At the subsequent trial, both parties testified on their own behalf and tendered some exhibits.

Essentially, the plaintiffs case against the defendant is for the sum of N612,563.70, then equivalent to US$294,762.00 and interest thereon for 5’bd years being balance of the total amount owed by the defendant to the plaintiff in respect of building materials supplied and services rendered to the defendant by the said plaintiff as evidenced by an accord and satisfaction, Exhibit A. ex facie shows that a dispute having arisen between the plaintiff and the defendant in 1979 as to the amount due and payable by the defendant to plaintiff in respect of the said materials and services supplied by the plaintiff to the defendant, both parties reached an agreement in the sum of US $542,000.00 being the precise balance payable by the said defendant to the plaintiff.

The defence was a total denial of the plaintiffs claim. It denied that the plaintiff supplied the defendant with any materials or services as alleged or at all. It asserted that the defendant at all material times dealt with the company, Expo Film SRL which company supplied building materials and services to the defendant. It claimed that these were fully paid for by the defendant. It denied the existence of Exhibit A but added that even if it existed, it was it consequence of the letter Exhibit H which was cancelled by another letter, Exhibit O.

At the conclusion of hearing, the learned trial Judge, Adekola, J. after a review of the evidence on the 29th September, 1986 dismissed the plaintiff s action in its entirety. He held, in the main, that the document, Exhibit A came into existence after a third party, Expo Film SRL, had by Exhibit H, appointed the plaintiff as their agent to collect the amount due to them from the defendant for materials supplied and other services rendered, that the relationship between the plaintiff and the defendant was that of an agent and a third party and that even the said Exhibit H was subsequently terminated by Exhibit O.

Dissatisfied with this decision of the trial court, the plaintiff lodged an appeal against the same to the Court of Appeal, Ibadan Division, which court on the 13th day of April, 1989, in a split decision in which Omololu – Thomas, J.C.A. dissented, dismissed the appeal but struck out the plaintiffs action. It confirmed the trial court’s finding that the plaintiff being at all material times a mere agent whose agency had been duly terminated had no locus standi to institute the action.

Aggrieved by this decision of the Court of Appeal, the plaintiff has further appealed to this court. I shall hereinafter refer to the plaintiff and the defendant in this judgment as the appellant and the respondent respectively.

Pursuant to the Rules of this Court, the parties, through their respective counsel, filed and exchanged their written briefs of argument. In the appellant’s brief, the following two issues are identified as arising for determination in this appeal, namely:-

“1. Whether the lower court’s affirmation of the trial court’s conclusion or finding that the plaintiff entered into Exhibit A as an agent was justified having regard to the pleading and evidence of the parties before the court.

2. Whether the lower court was right in affirming the facts of the case as found by the trial court and concurring in its judgment, having regard to the trial court’s approach to, and evaluation of the evidence and pleading of the parties before it.”

The respondent, for its own part, also submitted two issues in its brief of argument as arising for the determination of this court. These are:-