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A. Y. OJIKUTU
V.
ARBUCKLE SMITH & COMPANY LIMITED
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
10TH DAY OF NOVEMBER, 1952
W.A.C.A. NO. 3616
2PLR/1952/72 (WACA)
OTHER CITATION(S)
2PLR/1952/72 (WACA)
(1952) XIV WACA PP. 192-194
LEX (1952) – XIV WACA 192-194
BEFORE THEIR LRODSHIPS
FOSTER-SUTTON, P.
VERITY, C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN
A. Y. OJIKUTU – Appellant
AND
ARBUCKLE SMITH & COMPANY LIMITED – Respondent
(IN THE SUIT BETWEEN ARBUCKLE SMITH AND COMPANY LIMITED — Plaintiffs
AND
1. ABDUL HAMED OJIKUTU
2. A. Y. OJIKUTU – Defendants (Carrying on Business as the Ojikutu Trading Company)
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ORIGINATING COURT(S)
Appeal by the second defendant against judgment of the Supreme Court in plaintiffs favour
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REPRESENTATION
F. R. A. Williams, with A. O. Lawson — for Appellant
J. I. C. Tayler — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR:- Credit given to two persons allegedly as ‘partners’ (of a named business) and secured by way of deposited title deeds – Dispute as to indebtedness – Evidence proprietor of business only one of the two ‘partners’ – How treated
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION:— Defendant re-opening his case before judgment – Evidence arising therefrom – Legal effect
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CASE SUMMARY
The respondents, plaintiffs below, sued the two defendants for breach of contract, and obtained judgment; only the second defendant appealed.
The plaintiffs’ case was that the two defendants came together to their office saying they were partners and the second defendant deposited title deeds as security for a credit to be opened for the Ojikutu Trading Co. The trial Judge held that was so upon the evidence and the appellant’s main complaint was that the Judge allowed the first defendant to give evidence which happened thus:- Counsel for the first defendant said he submitted to judgment against the first defendant but disputed the amount claimed as general damages; and that he would address on that but not call evidence. Later that Counsel asked for leave to withdraw on the ground that his client now wanted something different: he wanted to go on. The Judge spoke to first defendant, who said he did not owe all the debt by himself and wished to give evidence. His Counsel was given leave to withdraw; the first defendant gave evidence confirming the plaintiffs; he was cross-examined by Counsel for the second defendant, without objection to the course taken by the Court.
In the appeal of the second defendant it was argued that the Judge could not allow the first defendant to re-open his case.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
No judgment had been entered against the first defendant at that stage; the Judge had a discretion, which was rightly exercised in the circumstances.
Case cited:-
(1) Harvey v. Croydon Union Rural Sanitary Authority, 1884, 26 Ch. 249.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SULTON, P.
The respondents who were the plaintiffs in the Court below sued the appellant and the first defendant named on the Writ of Summons, claiming the sum of £1,013 11s. 9d. by way of special damages and the sum of £200 by way of general damages, for breach of contract.
The case came for trial before Robinson, J., who gave judgment for the respondents against both defendants for the amount of special damages claimed and for £50 general damages.
The first defendant has not appealed.
The facts are fully set out in the learned trial Judge’s judgment, but shortly put the respondents’ case was that on the 24th January, 1949, the appellant and the first defendant attended a meeting at the respondents’ manager’s office during the course of which the appellant represented to their manager that he was a partner with the first defendant in a company trading under the name of the Ojikutu Trading Company, and that the appellant deposited the title deeds of two properties belonging to him situate in Lagos, with their manager by way of security for a credit to be opened in favour of the Ojikutu Trading Company by the respondents.
On behalf of the appellant it was submitted that the main issue on this appeal was the question whether the appellant was a partner in the Ojikutu Trading Company, that the only evidence that the appellant held himself out as a partner in the firm was that of the respondents’ manager, whereas it is clear from the first defendant’s evidence that he, the first defendant, was the sole proprietor and putting his evidence at its highest, it only established that the appellant was a partner in the transaction in respect of which the credit was to be opened.
Appellant’s Counsel then endeavoured to show that the appellant’s evidence denying that any meeting took place between the respondents’ manager, the first defendant and himself on the 24th January, 1949, was supported by other circumstances which emerge from the evidence and ought to have been accepted. The learned trial judge, however, preferred the evidence on this point given by the respondents’ manager and the first defendant, supported as it was by Exhibit “H”, the copy of a receipt the original of which was said by the respondents’ manager to have been issued by him to the appellant and the first defendant at the meeting on the 24th January, 1949, when the appellant handed him his two title deeds as security for the credit.
In my view there was ample evidence before the learned trial Judge to justify his finding that the meeting alleged did take place, and it seems to me that the appellant’s concern to deny that it did tends to support the trial Judge’s conclusion that there was a holding out as alleged by the respondents.
It was also submitted on behalf of the appellant that the learned trial Judge erred in permitting the first defendant to re-open his case in person and to give evidence after his Counsel, acting on his instructions, had submitted to judgment. It is the case that at the commencement of the second day of the trial of this action Counsel for the first defendant made a statement, the following note of which appears in the record:-
“Omololu: Submits to judgment on behalf of No. 1 defendant. But disputes the £200 general damages. Will address on damages, not call evidence.”
At the conclusion of the second day’s hearing, the learned trial Judge made the following note:-
“Possibly No. 1 may wish to give evidence. He seems restive in Court and wanting to talk.”
and the following note appears at the head of the record of the proceedings of the third day of the trial:-
“Omololu asks leave to withdraw. No. 1 last time gave me certain instruction and to-day he wants something different. Last time he told me to submit to judgment. To-day he wants to go on.
Court/ I speak to No. 1 defendant present before me. No. 1 tells me he does not owe the debt, all by himself, and wants to give evidence.
Court/ So be it. Let him defend himself, and Mr. Omololu given leave to withdraw.”
The first defendant then proceeded to give evidence which substantially corroborated the case put forward by the respondents, he was cross-examined by Counsel for the appellant and no objection was taken to the procedure adopted by the Court.
Appellant’s Counsel argued that the trial Judge had no discretion to allow the first defendant to re-open his case after the action taken by his Counsel, and he referred us to various cases, including Harvey v. Croydon Union Rural Sanitary Authority (1), in support of his submission that a consent given by Counsel with authority and with full knowledge of the facts is binding and cannot be withdrawn. He further argued that, in view of the observations of the learned trial Judge in the first sentence of the ultimate paragraph on page 5 of his judgment, without the evidence of the first defendant, this Court would be justified, at least, in ordering a new trial.
No one would, I am sure, dispute the correctness of the general proposition laid down in the cases to which we were referred, but on my view of the case before us that general proposition bas no real relevance.
When the first defendant was allowed to re-open his case and give evidence no judgment had been entered against him. At that stage it clearly could not have been because he was contesting the amount claimed by way of general damages. In my opinion the action taken by his Counsel amounted to no more than a statement that the first defendant was not disputing liability in respect of the special damages claimed, and I am also of the opinion that the learned trial Judge had discretion to adopt the procedure he did and that, in the circumstances of this case, his discretion was properly exercised.
I would, therefore, dismiss this appeal with costs.
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VERITY, C. J.
I concur.
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COUSSEY, J. A.
I concur.
Appeal dismissed.