GUINNESS NIGERIA PLC v. S. K. AJAYI (NIG) LTD
(2012)LCN/5372(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of May, 2012
CA/AK/15/2011
RATIO
EVIDENCE: EFFECT OF UNCHALLENGED EVIDENCE
In the case of BROADLINE ENTERPRISES LTD. V MONTEREY MARITIME CORPORATION & Anor. (1995) 9 NWLR (Pt.417) 1 @ 27. the Supreme Court per Iguh J.S.C. said
“I think the first point must be made for a better appreciation of their resolution that where evidence given by parties to any proceedings is not cross-examined upon or challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it as established.”
See also: CHIEF OBONO EGOM & ORS. v. MR. ENO OMINI ENO & Anor. (2008) 11 NWLR (Pt.1098) 320 @ 336 C-D, P.I.P.C. SECURITY LIMITED V MR GEORGE X. VLACHOS & ANOR (2008) 4 NWLR (Pt.1076) 1 @ 21 D – E, SHELL PETROLEUM DEV. COMPANY OF NIG. LTD V. LUCKY ESOWE (2008) 4 NWLR (Pt.1076) 72 @ 88 D-E. PER CHINWE E. IYIZOBA, J.C.A.
RELIEF: WHETHER A COURT SHOULD GRANT A RELIEF NOT SOUGHT
In Abdulkarim v Anazodo (supra) or (2006) 11 NWLR (Pt.991) 299, the trial court did exactly what is forbidden – granting a relief not claimed for and not incidental or consequential to the relief claimed. There, the court had ordered that the 1st plaintiff/appellant be compensated with alternative piece of land when he did not ask for any such relief. In the case of Regd. Trustee. Apostolic Church v. Olowoleni @ 531 B-D. Olatawura JSC observed:
“It is a misconception to submit that consequential order made by a court must of necessity be based on the reliefs claimed. The basis for an order made by the court must be looked for from the evidence before the court. It is trite that a court cannot award more than is claimed. It is equally misconceived that an order cannot be made in favour of a defendant simply because he has not filed a counter-claim. An order made in favour of a defendant even where he has not counter-claimed must flow from the evidence and more so if the justice of the case demands.” PER CHINWE E. IYIZOBA, J.C.A.
COURT: WHEN WILL A COURT BE FUNCTUS OFFICIO
The law is that once the court has decided the dispute between the parties it becomes functus officio, See: Nigerian Army vs. Iyela (2008) 7 – 12 SC 35; Berliet (Nig.) Ltd. Vs. Kachalla (1995) 9 NWLR (420) 478. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
GUINNESS NIGERIA PLC Appellant(s)
AND
S. K. AJAYI (NIG) LTD Respondent(s)
CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal by the defendant/appellant against the judgment of Kolawole J. of the High Court of Ondo State sitting at Ondo in Suit No HOD/25/2007 delivered on the 13th day of October, 2010. The Plaintiff/Respondent took out a writ of summons against the defendant/appellant on 2/5/07 claiming in their 2nd amended statement of claim as follows:-
“(a) Order of court compelling the Defendant to supply the Plaintiff with the following goods:
a. Large Stout – 335 crates or cartons
b. Small Stout – 8I73 crates or cartons
c. Harp – 360 crates or cartons
d. Malta Guinness – 1146 crates or cartons
Being the shortfall of goods due to the Plaintiff from the Defendant and already paid for by the Plaintiff.
OR IN ALTERNATIVE
(b) The sum of N31,960,293.37 (Thirty-One Million, Nine Hundred and Sixty Thousand, Two Hundred and Ninety Three Naira, Thirty-Seven Kobo) being the outstanding sum owed the Plaintiff by the Defendant in respect of incomplete stock delivery of alcoholic and non-alcoholic drinks to the plaintiff and for which the defendant has refused and neglected to pay in spite of repeated demands.
(c) Interest on the said sum at the rate 7% from the date of judgment.
The defendant in its amended statement of defence and counterclaim denied the plaintiff s claims and counterclaimed the sum of N40,000,000.00 (Forty Million Naira) being general damages suffered for loss of investment in training of and attendances at sale conference by Mr. Adekunle Omotayo and loss of business opportunities being enjoyed by the defendant as a result of the network facilitated by the said Adekunle Omotayo before his sudden separation from the Defendant’s company which was caused by the plaintiff.
The plaintiff filed a reply and defence to the counterclaim denying all the material facts in the counterclaim.
Briefly, the facts of the case as deduced from the pleadings are that the plaintiff as a major distributor of assorted beer and soft drinks all over Ondo State had trading relationship with the defendant, a brewery leading to the supply of Stout beer, Harp beer and Malta Guinness to the plaintiff by the defendant over the years. In the course of this business relationship, the plaintiff noticed a short fall in the supply of stock paid for over a period of time. The plaintiff informed the defendant of the short fall. A comprehensive audit of supply to the plaintiff in the past five years confirmed the short fall which came to a total of about N31.9 Million Naira. In spite of repeated demands, the defendant refused to pay back the money collected from the plaintiff for the goods not supplied or to supply the short fall of stock as detected. On persistent complaint by the plaintiff, the defendant offered to credit its account with the sum of about 10.6 Million Naira in full and final settlement of the short fall subject to a proposed settlement agreement. The plaintiff refused the offer on the ground that N10.6M was far below his claim of N31.9M. The plaintiff then instituted this action. The defendant in denying the plaintiff s claim pleaded that the claim was statute barred. The defendant further in their counterclaim pleaded that the plaintiff’s action led to the loss of the services of their highly valued staff Omotayo Adekunle which led to loss of business opportunities. They counterclaimed the sum of 40 Million Naira for the loss. During the hearing, the plaintiff called two witnesses and the defendant three. At the conclusion of hearing and the addresses of counsel, the learned trial judge held that the plaintiff’s claim was not statute barred and granted its main claim and dismissed the defendant’s counterclaim.
Dissatisfied with the judgment of the court, defendant/appellant filed a notice of appeal containing five grounds of appeal, out of which he formulated five issues for determination. The issues are:
1. Whether the Plaintiff/respondent’s suit as constituted before the High Court was not statute barred.
2. Whether from the evidence on record, the respondent’s claims before the High Court being specific claims, has been specifically pleaded and proved.
3. Whether the High Court has jurisdiction to grant to a party a relief not sought and not supported by any admissible evidence on record.
4. Whether the learned High Court Judge was right to make an award of interest on unspecified amount without any evidence to support the award.
5. Whether the High Court was right to have refused the Appellant’s counter claim
The plaintiff/respondents in their brief formulated four issues for determination. They are:
1. Whether in view of the combined effects of exhibit ‘J’ and the provisions of Section 22(3) of the Limitation Law, Cap 61 Vol. III Laws of Ondo State 1978, the Respondent’s claims can be said to be statute – barred.
2. Whether or not going by the oral and documentary evidence before the trial court, the respondent is not entitled to judgment on his claims.
3. Whether the Appellant has adduced credible evidence to entitle it to judgment on the counterclaim, or whether the Appellant has established a cause of action against the Respondent on the counter claim.
4. Whether from the pleadings of the Respondent and evidence adduced in support of the pleadings, the trial court can be said to have granted a relief not sought by the Respondent.
I will adopt the respondent’s four issues in the determination of this appeal as they capture the essence of the appellant’s five issues.
ISSUE 1
Whether in view of the combined effects of exhibit ‘J’ and the provisions of Section 22(3) of the Limitation Law, Cap 61 Vol. III Laws of Ondo State 1978, the Respondent’s claims can be said to be statute – barred.
Sections 4 (1) (a), 22 (3) and 23 (1) of the Limitation Law, Cap 61 Laws of Ondo State, 1978 provide:
Section 4
(1) “The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-
(a) Actions founded on simple contract…”
Section 22 (3)
“Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefore acknowledges the claim or makes any claim in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment:” (Proviso not relevant)
Section 23 (1)
“Every such acknowledgment as aforesaid shall be in writing and signed by the person making the acknowledgment.”
The parties herein are ad idem that the claims of the Respondent at the High Court were based on simple contract of sale of goods and in respect of which action must be initiated within six years of the accrual of the cause of action. The question therefore is when did the cause of action accrue? The contention of the appellant is that it was a joint claim for a period of 2000 – 2004 while the writ of summons filed on 18/4/07 was issued pursuant to leave of the High Court granted on 2/5/07; that the period between 2000 to 2007 is 7 years; that this is more than the period allowed under the Limitation Law to bring action; and that the respondent’s claim for a shortfall in supply of stock allegedly paid for between 2000-2004 in 2007 is statute barred. It is necessary to look at the meaning of the phrase ’cause of action’ and also nature of the transaction in this case in order to see whether the cause of action indeed arose in 2000. The view of the learned trial judge on this point at pages 161 – 162 of the record of appeal is quite illuminating. He said:
“The term ’cause of action’ means the fact or facts which establish or give rise to a right of action. It is a factual situation whose existence entitles the plaintiff to obtain from the court of law, remedy against the defendant. See INDUSTRIAL TRAINING FUND & Anor. V NIGERIA RAILWAY CORPORATION (2007) 3 NWLR (Pt.1020) 28 @ 61 F-G.
For the plea that the cause of action of the plaintiff is statute barred to be successful, the actual time the cause of action accrued must be proved. When this is proved, the date will then be compared with the date the case was commenced and if the time between the two events is in excess of six years, the cause of action is statute barred and the court is without jurisdiction to act on the case. See FADARE V ATTORNEY-GENERAL OYO STATE (1982) 4 SC 1. It is the duty of the defendant to prove when the cause of action arose. This is simply on the basis that it asserts the existence of the fact that the cause of action arose more than six years from the date this case was filed. See AGWARAMGBO & Anor. V IDUMOGU (2008) 5 NWLR (Pt.1081) 564 @ 572F
There is no doubt that the case commenced on the 2nd of May, 2007 when I granted leave to the plaintiff to issue the writ of summons. A casual look at the case may lead to the conclusion that the short fall for the year 2000 and part of 2001 are statute barred because those times are in excess of six years from the date the case was filed; and that since the claim is joint this may affect the part that is not statute barred. However a careful study of the case will reveal an issue. Both sides conceded that products ordered may not be available as at the date of delivery; and in such a situation, those products will be delivered when they are available. This point was conceded by DW3 in his evidence-in-chief. In a case of non delivery as agreed to by the parties, it will be nonsensical to say that a cause of action for non delivery arose on the date of delivery. The plaintiff cannot sue for the non delivery that day because it is agreed that the non delivery can be made up in the future. The question is when can the plaintiff insist on the delivery of products not delivered to it? The parties did not supply that vital evidence as it is not clear when a non delivery will be too late to be delivered and as such the non delivery will crystallize to a cause of action. The court cannot speculate on this. The court must be placed in a commanding height to decide when a cause of action accrues and when relevant materials are not placed before the court to enable it determine the time the cause of action arose, the court would not be able to say the cause of action is statute barred.”
I am of the view that this is a brilliant summary of the law which cannot be faulted.
Learned counsel for the appellant is with due respect wrong in his contention that the learned trial judge made a case for the parties outside their pleadings and evidence. It is true that the pleadings and evidence show that delivery is to be made upon payment. It is also true from the pleadings and evidence that complete delivery is not always made upon payment and that shortfalls are made up later. It will therefore be absurd and ‘nonsensical’ as opined by the trial judge to say that once payment is made and full delivery is not made, the respondent should at once rush to court to sue the appellant. The practice is that short falls are made up later. The cause of action cannot therefore accrue as soon as there is a short fall in delivery. This is why the learned trial judge was of the view that the appellant whose burden it was to prove that the case was statute barred failed to place before the court material evidence which will enable the court determine when the cause of action arose.
The appellant had argued in paragraph 4.13 – 4.14 of his brief of argument that Section 19 Rule 1 of the Sale of Goods Law, Laws of Ondo State 1978 provides that where there is an unconditional contract for the sale of specific goods in a deliverable state the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both be postponed. Counsel further argued that the moment a sales order is issued whether payment is by post dated cheque or empty crates, there is binding and enforceable contract between the appellant and the respondent and time begins to run from that day. With all due respect to learned counsel, the argument cannot apply to the circumstances under consideration. It concerns the matter of when title is said to pass in a contract for sale of goods. Accrual of cause of action for purposes of limitation of action is a totally different concept. The determining factor is whether there is a factual situation whose existence entitles the plaintiff to obtain from the court of law, remedy against the defendant. Cause of action in the circumstances of the relationship between the appellant and the respondent cannot arise immediately on short fall in delivery because DW3 said at page 139 of the record:
“After processing the sales order, delivery is sent to the distributor. It is possible for some of the products not to be available at the time of the delivery and in such a situation, those available will be sent. Whatever is supplied will be indicated in the delivery note. Those that are not available will be sent after they are available and this will be backed by appropriate delivery note which will contain the sales order number.”
This clearly explains why the cause of action cannot automatically accrue on short fall in delivery because it is expected that the short fall will be remedied when the goods are available. The appellant cannot therefore say that the claim is statute barred without making available to the court the date the cause of action accrued. The burden is not on the respondent as claimed by the appellant to supply the information that non delivery of the product was due to non availability in order to show that its claim is not statute barred. The appellant is the one asserting the affirmative of the issue – that the claims are statute barred. He bears the burden of adducing the necessary evidence. In addition to the fact that the appellant failed to supply the necessary material to enable the court decide the issue one way or the order, the trial court rightly in my view held that exhibit ‘J’, the credit note by which the appellant offered the respondent the sum of a little over 10.6 Million Naira in full and final settlement of its claim amounted to an acknowledgment of the debt within the meaning of Sections 22(3) and 23(1) of the Limitation Law, Cap 61, Laws of Ondo State, 1978.
Mr Oladejo for the appellants in his brief gave several reasons why Exhibit ‘J’ cannot be deemed such an acknowledgment. They are:-
1. That Sections 22(3) and 23(1) of the Limitations Law are inapplicable in this case because the credit note was a mere annexure to a document titled ‘forbearance and Release’ admitted jointly with the credit note as exhibit ‘J’ as the two documents were made in the course of amicable resolution of the case even though not marked ‘without prejudice.’
2. That admission of liability of the respondent’s claim by the appellant was specifically denied in the document titled ‘Forbearance and Release’
3. That the credit note heavily relied on by the trial judge was made subject to the acceptance by the respondent of the conditions set out in the document ‘forbearance and Release’ which conditions the respondent did not accept by his refusal to sign the document.
4. That failure of the respondent to sign the document rendered it ineffectual.
5. That the trial judge was in error to be searching for evidence to support his finding in a specific claim by relying on exhibit H, particularly a portion that did not form part of the document.
Counsel finally submitted that the decision of the trial judge that the claims were not statute barred was based purely on speculation and conjectures particularly his reliance on exhibits J and H and urged the court to hold that the claims before the High Court were statute barred, to allow the appeal and strike out the case with substantial cost. The learned trial judge answered all of the above points raised by the appellant so well in the judgment, that it is better to simply reproduce that part of the judgment. Page 163 of the record:
“Although the document attached which is that of forbearance and Release talks of the fact that there is no admission of liability on the part of the defendant, I am clear in my mind that the defendant indeed conceded that some products were not delivered to the plaintiff and the credit note was offered to make up for this.
I am fortified in my conclusion by the hand-written message contained in exhibit H, a letter written to the plaintiff by the defendant. It states “SK. Let’s hope we can resolve the financial issue soon. Our offer still remains on the table. “Although the hand written message did not refer to exhibit J, but it is clear that it was the offer being referred to. The document Exhibit H was signed by Kelvyn Shantry, the Director of Sales of the defendant. The hand-written part was initialed and a comparison of the initial and the main signature shows that the initial is similar to the first letter of the signature. I am perfectly within bound to make the comparison. See: TOMTEC NIGERIA LIMITED V FEDERAL HOUSING AUTHORITY (2009) 12 SCNJ 190 @ 206. If my position is correct. And I believe it is, then the day the cause of action accrued would further be taken forward and this would make the time to come within the six years prescribed in section 4 (1) (a) of the Limitation Law. Looking at it from any perspective, I think the cause of action of the plaintiff is not statute barred. I am in total agreement with the learned trial judge that the claims of the appellant at the lower court were not statute barred for the reasons, firstly, that there was no evidence placed before the court from which to determine when the cause of action accrued. Secondly, that exhibit J acknowledged the indebtedness by offering the sum of 10.6 Million Naira in settlement of the appellant’s claim. This in effect renewed the right of action which is now deemed to have started from the date of the acknowledgment. Issue 1 is resolved in favour of the respondent.
ISSUE 2
Whether or not going by the oral and documentary evidence before the trial court, the respondent is not entitled to judgment on his claims. The respondent’s main claim at lower court which was granted was as follows:-
An Order of court compelling the Defendant to supply the Plaintiff with the following goods:
a. Large Stout – 335 crates or cartons
b. Small Stout – 8173 crates or cartons
c. Harp – 360 crates or cartons
d. Malta Guinness – 1146 crates or cartons
Being the shortfall of goods due to the Plaintiff from the Defendant and already paid for by the Plaintiff.
The contention of the appellant is that the respondent did not specifically plead nor lead evidence as to how it came by the figures mentioned as short falls in supply. Counsel further argued that considering the totality of the evidence before the court that the respondent failed to discharge the onus placed on it as to be entitled to judgment. Counsel contended that documents of sales such as sale orders and delivery notes from which the short falls emanated were not pleaded nor tendered in evidence. Counsel submitted that the auditor’s report, exhibit C tendered by PW2 was at variance with the claims of the respondent and that the judgment of the lower court was based mainly on speculations and not hard evidence. Counsel hinged this argument on his claim that the learned trial judge relied on inadmissible evidence particularly document tendered and marked for identification and not as an exhibit. On exhibit J, counsel argued that the lower court relied heavily on the credit note which was a mere annexure without considering the purport of the main document.
All the arguments of learned counsel for the appellant were again adequately dealt with and resolved in the judgment of the lower court at Pages 164 – 166 of the record of appeal:-
“The next issue is whether the plaintiff proved that the defendant short supplied products it ordered and paid for. The plaintiff adequately pleaded the number of crates of products not supplied but paid for. PW1 the Chairman/Managing Director of the plaintiff gave oral evidence of the fact pleaded and there were no discrepancy. If it had stopped at that, I will definitely not have found that the matter is proved. This is because the question would have arisen as to how the figures were arrived at, the witness not being learned in the science of auditing as he claimed to have only Primary School Education. There was however the evidence of PW2, a person who holds a Bachelor of Science Degree in Economics, a Master of Science Degree, a Chartered Accountant who has been practicing as an auditor for close to sixteen years. He gave evidence on behalf of the plaintiff.
PW2 was employed by the plaintiff to audit the products delivered between it and the defendant. The witness gave evidence that he had the cooperation of the defendant when he was going about his assignment. He mentioned the name of an individual, Mr. Rotimi Ogunlate, an internal auditor with the defendant who assisted in facilitating his job. The defendant made an issue of this. They brought DW2 who claimed that he did not work with the PW2. He said he was not employed by then. DW3 also gave evidence that DW2 was employed after the PW2 conducted the audit. I think the issue involved is that of credibility and I believe the PW2 that the staff of the defendant assisted him when he was doing the auditing. This fact was expressly stated in Exhibit C, the Report, which was admitted without any objection. There is no reason why PW2 will want to lie. He was employed to do an audit job which he has completed and presumably paid for. There is an incentive for the staff of the defendant, DW2 and DW3 to lie on the issue. Their employer is facing the huge claim which outcome may affect them.
The PW2 conducted the audit and came to the conclusion that specific numbers of crates of products paid for were not supplied. They were 335 crates of big stout (also known as large stout), 8173 crates of small stout, 360 crates of Harp larger beer and 1146 crates of Malta Guinness. The witness gave evidence that a copy of his report was sent to the defendant as well as the plaintiff. Although the defendant did not directly admit this fact but it is clear that a copy of the report was sent to the defendant as claimed by PW2. The defendant through a query sent to Kunle Omotayo, its staff, alluded to the report and correctly quoted some figures in the report. Although the query was only tendered for identification but since the response to the query was tendered as an Exhibit, I believe I can look at the query to have a complete picture. See JOSEPH OYEWOLE V KARIMU AKANDE (2009) 7 S.C.N.J. 225 @ 246.
Exhibits D to D4 were the working papers used by the PW2 to write the report. Exhibits D – D4 were in the custody of the Defence counsel and the documents were tendered by him through PW2. The witness was not cross-examined at all on the auditing he did. No suggestion was put to him that he did not do the job very well. The witness was not confronted with any error he committed, notwithstanding that his working papers were in the hands of the Defence Counsel. The witness was able to demonstrate how he came about the figures. The submission by learned counsel for the defendant that exhibits D – D4 were contradictory to the report, Exhibit C is puerile. The counsel should have put the contradictions to PW2 when he was giving evidence.
It is clear from the evidence led in this case that every document needed to conduct audit of products ordered and products supplied are with the defendant. The issue raised by the defendant that the plaintiff did not supply documents to prove its claims do not hold. The sale orders were sent to it and it processed them into invoices and delivery notes. The delivery notes were returned to the defendant after delivery with the acknowledgement of what products supplied to it by the plaintiff. So what did it need to conduct its own audit to contradict the report presented by the PW2? It did nothing. This is indicative of the fact that the defendant had no objection to the report as contended by the PW2. The defendant had the opportunity to contradict the conclusions of the PW2 through cross-examination or by conducting its own audit of the business relationship between it and the plaintiff but it chose to remain inactive. In the case of BROADLINE ENTERPRISES LTD. V MONTEREY MARITIME CORPORATION & Anor. (1995) 9 NWLR (Pt.417) 1 @ 27. the Supreme Court per Iguh J.S.C. said
“I think the first point must be made for a better appreciation of their resolution that where evidence given by parties to any proceedings is not cross-examined upon or challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it as established.”
See also: CHIEF OBONO EGOM & ORS. v. MR. ENO OMINI ENO & Anor. (2008) 11 NWLR (Pt.1098) 320 @ 336 C-D, P.I.P.C. SECURITY LIMITED V MR GEORGE X. VLACHOS & ANOR (2008) 4 NWLR (Pt.1076) 1 @ 21 D – E, SHELL PETROLEUM DEV. COMPANY OF NIG. LTD V. LUCKY ESOWE (2008) 4 NWLR (Pt.1076) 72 @ 88 D-E.
It is clear that there were products short supplied by the defendant to the plaintiff and which the plaintiff paid for. It is agreed that the relationship between the plaintiff and the defendant was on ‘cash and carry basis’ and the implication of this is that any Sales order is backed up with credit. The cheque may however be post dated. There is no issue of non payment of any cheque in the case. In Exhibit J the defendant gave credit note to the tune of N10,668,028.90 to the plaintiff, I do not accept the claim of the defendant that the credit note was a gift to assuage the feelings of the plaintiff and to further business relationship. It is clear that the credit note was for products not delivered by the defendant. The court cannot but accept the evidence of the plaintiff’s witnesses as to the number of products paid for but which were not delivered by the defendant. The defendant did not give evidence to challenge the claims of the plaintiff even though it knew that products paid for were not totally delivered. I therefore hold that the plaintiff has been able to prove that it paid for 335 crates of large or big stout, 8173 crates of small stout, 360 crates of Harp larger beer and 1146 crates of Malta Guinness; but the defendant did not supply the products.
The reasoning of the learned trial judge is sound and I agree entirely with it. On the issue of the credit note exhibit J being a mere annexure to another document, the import of which the appellant claimed the trial judge failed to consider, the contention is misconceived. The credit note of N10.6 Million was made subject to the endorsement by the respondent the document titled ‘Forbearance and Release’. The respondent refused to sign the document and rejected the credit note as inadequate. This does not in any way affect the fact that the appellant made the offer which in effect meant an admission to the short fall in supply. This is so notwithstanding the clause in the document denying liability, the learned trial judge made proper use of exhibit J. His Lordship was also right in his conclusion that the respondent duly pleaded and led adequate evidence to justify the judgment entered in his favour. Issue 2 is resolved in favour of the respondent.
ISSUE 3
Whether the Appellant adduced credible evidence to entitle it to judgment on the counterclaim, or whether the Appellant has established a cause of action against the Respondent on the counter claim.
The appellant at the lower court counter-claimed the sum of N40M from the respondent. The contention of the appellant is that the respondent was responsible for the loss of the services of their star employee Kunle Omotayo; that since Kunle Omotayo left the company, sales fell dramatically; that the appellant spent huge sums of money training and retraining Omotayo; that the respondent should refund the appellant the losses incurred in dispensing of the services of Omotayo. The question that cries for an answer is: what are the circumstances that led to Omotayo leaving the services of the appellant? The appellant in his amended statement of defence and counterclaim at page 94 of the record of appeal averred:
11. “The defendant will also contend at the trial that the plaintiff induced one of the defendant’s employees, Mr. Adekunle Omotayo to breach his contract of employment with the Defendant, which led to the suspension and ultimate termination of the employment of the said Mr. Adekunle Omotayo.
12. The Defendant states that the plaintiff induced Mr. Adekunle Omotayo to abandon his place of work at the defendant’s Ondo depot to be selling beer for the plaintiff at the plaintiff’s store in Ondo contrary to the terms of employment between the defendant and Mr. Adekunle Omotayo.
13. The defendant further states that as a result of gross violation of the terms of his employment with the defendant, Mr. Adekunle Omotayo was suspended and later the Defendant terminated his appointment.
14. The defendant also states that as a result of the termination of Mr. Adekunle Omotayo’s employment for breach of contract, the defendant has suffered huge loss of investment in training, cost of attendance at sales conferences, and loss of business opportunities enjoyed by the defendant as a result of the network facilitated by Adekunle Omotayo before his sudden separation by the company which was caused by the plaintiff.
15. The defendant will lead evidence to show that its sale volume at Ondo District had declined as a result of the matter referred to above.
Contrary to the averments above, DW2, Olalekan Busari of the Human Resources Department of the appellant company in his evidence at page 135 of the record of appeal testified that “Mr. Omotayo’s employment was determined because the plaintiff company wrote a petition against him for using his account for trading with other parties.” He further testified: “Mr. Omotayo was issued a query… Guinness found out through Mr. Omotayo’s reply that he acted outside his capacity as a staff. He was employed to reconcile the accounts of Guinness and its customers in the Ondo area. It was not part of his duties to engage in selling products meant for a customer to another customer.”
The evidence of DW3 was to the same effect. In view of the above, it is difficult to see how the respondent was responsible for the dismissal of Mr. Omotayo. The query to Mr. Omotayo was as a result of a petition written by the respondent to the appellant that Mr. Omotayo was using his account to trade with other customers. If indeed the respondent had instructed Mr. Omotayo to abandon his duties as a staff of the appellant to be selling the respondent’s goods as alleged by Mr. Omotayo in his answer to the query, why would the respondent write the petition. Besides, is the appellant’s ‘sales guru’ from the picture painted of him by the appellant so dumb that he would allow himself to be deceived into leaving his primary assignment to be selling the respondent’s products. DW2 and DW3 gave the reasons why Omotayo was dismissed by the appellant – for acting outside the scope of his authority. What has the respondent got to do with that? As stated by learned counsel for the respondent in his brief, if the appellant so valued the services of Omotayo, it should have tolerated his misconduct and retained his services. They did the sacking – not the respondent. I am in agreement with learned counsel for the respondent that the counterclaim is frivolous. The learned trial judge was right in dismissing the counterclaim. Issue 3 is resolved in favour of the respondent.
ISSUE 4
Whether from the pleadings of the Respondent and evidence adduced in support of the pleadings, the trial court can be said to have granted a relief not sought by the Respondent.
This covers the appellant’s issues 3 & 4.
The learned trial judge in his judgment at pages 168 – 170, observed with respect to the alternative claim that there was no evidence as to how the respondent came by the figure of N31,960,293.37k as the total value of the products not supplied to it by the appellant. The unit price of each crate of the product was not provided. The learned trial judge further observed that an alternative claim will only be relevant if the main claim fails. He held that the main claim did not fail and that the respondent proved that the defendant did not supply the said items. He consequently ordered the defendant to supply to the plaintiff 335 crates of large or big stout, 8173 crates of small stout, 360 crates of Harp larger beer and 1146 crates of Malta Guinness which it paid for between the year 2000 and 2004 but which the defendant failed to supply to it. The trial court further ordered that if by reason of the sour relationship between the parties, the defendant is unable or unwilling to supply the products, then the plaintiff is entitled to the monetary value of the products. In arriving at the monetary value, the trial judge directed the Assistant Chief Registrar of the Court with the assistance of representatives of the parties to determine the open market price of each crate of the four products not supplied and to multiply the figure with the total number of crates of each of the four products. The trial judge also awarded 7% interest on the judgment sum (i.e. the monetary value) from the day of the judgment until the judgment sum is fully paid.
The contention of the appellant on his issues 3 & 4 is that it was not part of the respondent’s claims that in the unlikely event that the defendant is unwilling to supply the products in contention, the court should award to it their monetary value. Referring to the cases of ABDULKARIM & 2 Ors v ANAZODO (2006) 29 WRN 151 @ 169 and REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH V. OLOWOLENI (2009) 6 NWLR (Pt.155) 514 @ 531 counsel submitted that the court having refused the alternative claim for lack of proof had no jurisdiction to grant a relief not sought by the respondent. Counsel further submitted that it is not the duty of the court to make a case for the parties. On the award of 7% interest on the judgment sum, counsel submitted that it had no basis in law or in fact because the trial judge granted only the main claim of the respondent which was to supply alcoholic and non alcoholic drinks. Having refused the alternative claim of the respondent including the claim for interest, the court had no jurisdiction to award interest on an unspecified amount. The award of interest, counsel submitted was an attempt to grant through the back door, part of the alternative relief already refused by the Court.
Learned counsel for the respondent in reply submitted that the High court has an inherent power to make orders even if not sought where such orders are incidental to the prayers sought. He cited the case of Diamond Bank Ltd v. Partnership Inv Co Ltd & 1 or (2010) 179 L.R.C.N 84 paragraph A. Counsel submitted that the order made by the trial judge was necessary in view of the frosty relationship between the parties and that if the appellants supply the products, then the parties would not need to find out their current market value. I need to comment on this last point right away. The learned trial judge in the judgment had directed that the figure arrived at by the assistant Chief Registrar and the parties’ representatives shall be the monetary value of the judgment and shall be filed in court within 7 days of the date of the judgment. The matter of finding out the current market value of the products is therefore not dependent on the failure of the appellants to supply the goods. Perhaps what learned counsel intended to say is that if the products are supplied, then the need to pay the monetary value will not arise. The crucial question however is whether the learned trial judge deviated from the claim of the parties by making an order that the Assistant Chief Registrar and the parties’ representatives should ascertain the market value of the products and payment of the monetary value with interest in lieu where the appellant is unable or unwilling to supply the products.
The position of the law is certain that a court of law can only grant reliefs claimed by a party and not more. It is trite that a court is duty bound to adjudicate between the parties on the basis of the claim formulated by them. See Osuji v Ekeocha (2009) 16 NWLR (Pt.1166) 81. The reason behind this rule is the need for the court to hear the views of the parties before making an order different from the one claimed. Can it be said in the circumstances of this case that the learned trial judge made an order different from the one claimed by the respondent? I am of the view that the learned trial judge did make an order different from the one claimed by the respondent. The respondent was very specific about the reliefs claimed. The first arm was for supply of specified number of crates of drinks paid for and not supplied. In the alternative, the respondent claimed for a specific sum of money as the value of the goods. This was rejected by the trial judge because there was no evidence as to how the respondent arrived at the figure. What the learned judge did was to now jump into the arena and to assist in remedying the defect that led to a rejection of the alternative relief. I think that the learned trial judge by so doing over-stepped his bounds as a neutral arbiter of facts between two sides. The lower court should have stopped at the grant of the main relief claimed – that the appellant should supply to the respondent the stipulated crates of alcoholic and nonalcoholic drinks which he had paid for but which were not supplied to him. It is an order of the court. If the appellant fails to comply with the formulated court order, then the consequences of failure to obey a lawful order of the court will follow. The consideration by the learned judge of whether the appellant will comply or not because of the frosty relationship between the parties is completely out of place. The complaint of the appellant that there was nothing in the pleadings and evidence led that the relationship between the parties had turned sour and that the trial judge relied on extraneous issue contained in an application for injunction not yet heard by the court in coming to that conclusion, is in my view well founded. I agree with learned counsel.
Learned Counsel for the appellant had referred to the cases of ABDULKARIM & 2 Ors v ANAZODO (2006) 29 WRN 151 @ 169 and REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH V. OLOWOLENI (2009) 6 NWLR (Pt.155) 514 @ 531. The proper citation for the latter case is [1990) 6 NWLR (Pt. 158) 514. I am constrained to advise that counsel should go the extra mile of cross checking citations in law reports before using them in their briefs. It creates extra work to spend precious time searching for the appropriate law report. In Abdulkarim v Anazodo (supra) or (2006) 11 NWLR (Pt.991) 299, the trial court did exactly what is forbidden – granting a relief not claimed for and not incidental or consequential to the relief claimed. There, the court had ordered that the 1st plaintiff/appellant be compensated with alternative piece of land when he did not ask for any such relief. In the case of Regd. Trustee. Apostolic Church v. Olowoleni @ 531 B-D. Olatawura JSC observed:
“It is a misconception to submit that consequential order made by a court must of necessity be based on the reliefs claimed. The basis for an order made by the court must be looked for from the evidence before the court. It is trite that a court cannot award more than is claimed. It is equally misconceived that an order cannot be made in favour of a defendant simply because he has not filed a counter-claim. An order made in favour of a defendant even where he has not counter-claimed must flow from the evidence and more so if the justice of the case demands.”
The above authorities are relevant. The order for monetary payment in lieu of supply of the drinks was not consequential or incidental to the relief granted. It was indeed a grant of the alternative relief already refused for lack of proof. The respondent never asked for the two reliefs.
He had wanted one or the other. I would therefore say that the court awarded the respondent a relief not claimed. Issue 4 is consequently resolved in favour of the appellant.
The appeal therefore succeeds in part. The judgment of the High Court of Ondo State sitting at Ondo in suit no HOD/25/2007 delivered on the 13th day of October, 2010 is affirmed but with the modification that the judgment of the court shall be confined to the relief set out in paragraph 13 (A) of the second amended statement of claim dated 12/12/07 and no more. For clarity, the judgment of the lower court ordering the appellant to supply to the respondent the following goods:
a. Large Stout – 335 crates or cartons
b. Small Stout – 8173 crates or cartons
c. Harp – 360 crates or cartons
d. Malta Guinness – 1146 crates or cartons
Being the short fall of goods due to the respondent from the appellant and already paid for by the respondent is upheld. The further order of the court that if by reason of the sour relationship between the parties, the defendant is unable or unwilling to supply the products, the plaintiff is entitled to the monetary value of the products is hereby set aside. Also set aside is the directive that in arriving at the monetary value, the Assistant Chief Registrar of the Court with the assistance of representatives of the parties shall determine the open market price of each crate of the four products not supplied and the order awarding 7% interest on the judgment sum (i.e. the monetary value).
The parties to bear their own costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, Iyizoba, JCA just delivered. His Lordship has meticulously considered and resolved the issues in contention in this appeal. I agree entirely with the reasoning and conclusion.
My brief comments are in support of the lead judgment and by way of emphasis. The learned trial Judge in this case did an admirable job in the way and manner in which he thoroughly considered and determined the dispute between the parties. Perhaps out of concern for the fate of the respondent in the event that the appellant failed to comply with the order to supply the various quantities of products, His Lordship made an unfortunate blunder by making unsolicited speculative orders. He held thus at pages 169 – 170 of the record:
“The conclusion I have reached is that the defendant is to supply the plaintiff 335 crates of large or big stout, 8173 crates of small stout, 360 crates of Harp larger beer and 1146 crates of Malta Guinness which it paid for between year 2000 and year 2004 but which the defendant failed to supply to it. However, if because of the sour business relationship now existing between the parties, the defendant is unable or unwilling to supply the produce to wit: 335 crates of large or big stout, 8173 crates of small stout, 360 crates of Harp larger beer and 1146 crates of Malta Guinness; then the plaintiff is entitled to the monetary value of the products. The Assistant Chief Registrar of this court with the assistance of the representatives of the parties shall determine the open market price here at Ondo of a crate of each of the four produce not supplied that is, large or big small stout, Harp larger beer and Malta Guinness and when this is got the value will be multiplied with the proven number of crates not supplied for each of the four products. What I mean is that where X stands for the open market price of a crate of each of the four products, then X will be multiplied by 335 in case of large stout, 8173 in case of small stout, 860 in case of Harp larger beer and 1146 in the case of Malta Guinness. The total figure got from this arithmetic process shall be the monetary value of this judgment. The figure arrived at shall be filed within seven days from today. There shall be seven per centum (7%) interest on the judgment sum from the Day of Judgment to the time the judgment sum is fully liquidated.” (Underlining mine).
The law is that once the court has decided the dispute between the parties it becomes functus officio, See: Nigerian Army vs. Iyela (2008) 7 – 12 SC 35; Berliet (Nig.) Ltd. Vs. Kachalla (1995) 9 NWLR (420) 478. In this case the learned trial Judge had considered both the main relief and the alternative relief sought by the respondent in his statement of claim. He granted the main relief as prayed. He held that the alternative relief could not have been granted in any event because it was not proved. It was therefore not open to him to speculate on whether or not his order would be obeyed and to proceed to grant alternative reliefs not asked for by the respondent. His duty ended once he had made an order that the appellant should supply specific quantities of various products which it had failed to supply to the respondent.
In my view, the alternative orders made amounts to descending into the arena of conflict and assisting one of the parties in the enforcement of the judgment. The respondent has his legal remedies in the event that the judgment was not obeyed. It is not for the learned trial Judge to anticipate disobedience and provide remedies therefore. Unfortunately this blunder has tainted an otherwise well reasoned and well-written judgment.
It is for these and the fuller reasons contained in the lead judgment that I also allow the appeal in part in the terms stated therein. I abide by the order on costs.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the judgment just delivered by my learned brother, IYIZOBA, JCA. His Lordship has painstakingly analysed the issues in this appeal and has given very sound reasons for allowing the appeal in part. I cannot agree more.
I abide by all the orders in the lead judgment, including the order for costs.
Appearances
Moses Oladejo Esq.For Appellant
AND
Aderemi A. Suleiman Esq.For Respondent
