T.O. Oyegbola V Esso West Africa Inc (1966)
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Dealt with the other claims and continued:-The plaintiff complains that he ought to have had judgment for the repayment of his security with interest-£3,500 plus £840 interest for six years. Apart from his evidence that he deposited £3,500 in 1957, there is nothing to show that he did so then in a lump sum; but he is not, to put it mildly, an accurate witness, ;and there is the company’s evidence on the figures he has been credited with, of which he was aware. We cannot accept his figures as correct.
His learned counsel has argued that, as the company admits certain figures but has not pleaded a set-off or counterclaim, the plaintiff is entitled to judgment in his suit on the ground that crediting him in the account is neither payment nor satisfaction because the account is not in the nature of an account stated or settled between the parties. The argument overlooks the fact that the company had already sued the dealer (here the plaintiff) in the High Court at Ikeja, which is distinct from the High Court of Lagos.
A counterclaim, to quote from Halsbury’s Laws of England (3rd ed.) Vol. 34, p.395, para. 671, is-
“A weapon of offence which enables a defendant to enforce a claim against the plaintiff as effectually as in an independent action.”
Instead of suing separately, the defendant may insert his claim into the plaintiff’s suit under the label of counterclaim if it is of a kind which by law he is entitled to raise and have disposed of in the plaintiff’s suit. The company’s suits at Ikeja and the plaintiff’s suit in Lagos arose out of the same set of transactions and it was eminently desirable to hear them all together, but as the High Courts are distinct the suits could not be consolidated, nor could there have been a transfer from one court to the other. The plaintiff here, instead of counterclaiming in the Ikeja suits, which had been brought first, created an awkward situation by suing the company in Lagos. If the company were to counterclaim in his suit, they would have laid themselves open to the objection that as the company had made their claims in independent suits at Ikeja, they could not make them again in Lagos under the guise of a counterclaim. The plaintiff is seeking to achieve a tactical advantage, but there are cogent reasons against giving him judgment on his claims for the security and interest even on the company’s figures, which amount to £4,098-6s-1 d.
On his own admission he owed the company over £7,000 in 1960 and since then his account started to be in debit; there is also the evidence of the company’s accountant that he owes a great deal more. Consequently, if he were to be given judgment for £4,098-6s-1 d, execution must be stayed until the Ikeja suits are decided; so the judgment would serve no useful purpose; and, what is more, it would entail the company in the expense or amending their claims in the Ikeja suits, again to no useful purpose.
Moreover, it would not be right to isolate the security given to the company in connexion with their transactions with him as a dealer: it ought to be dealt with in proceedings on the accounts of those transactions. There are such proceedings at Ikeja; they were brought earlier than his suit in Lagos, and the proper and fair course is to compel the plaintiff to treat his security account as an item for adjudication in those proceedings.
We recollect being told that he objects to the jurisdiction of the High Court at Ikeja; on that we offer no opinion. If he turns out to be right, the Ikeja suits will disappear, and the plaintiff can then consider whether he would like to pursue his claim on the security and interest in the High Court of Lagos. Technically it may have been a mistake to dismiss that claim in the suit in hand. Learned counsel for the company suggested non-suiting him on that claim. This would mean that he could sue in the Lagos High Court again; but, as in our view the security account is a matter for adjudication in the Ikeja suits, the right course is to stay the claims for security and interest on it in the Lagos suit, with a direction that the stay shall not be removed except by leave of the Supreme Court. We have to add that neither the stay of claims (a) and (b) nor the dismissal of claims (c) and (d) is to affect the credits which the company has allowed the dealer in their accounts.
It is ordered as follows:
(1) that the plaintiffs appeal from the decision of 27 November, 1964 in the Lagos High Court Suit No. LD/239/63-T. 0. Oyegbola v. Esso West Africa Inc.-be dismissed and the defendant company’s cross-appeal be allowed with costs in favour of the defendant assessed at sixty-five guineas in the Supreme Court;
(2) that judgment shall be entered in the High Court staying the claims for security deposited and interest thereon and dismissing the other claims but without prejudice to the credits in account allowed to the plaintiff by the company; and
(3) that the stay shall not be removed except by leave of the Supreme Court.
Other Citation: (1966) LCN/1317(SC)