⦿ CASE SUMMARY OF:
A. U. Amadi v. Thomas Aplin & CO. LTD (1972) – SC
by NSA PaulPipAr
⦿ AREA OF LAW
– Contract.
⦿ TAG(S)
– Fair hearing.
– Amendment of statement of claim.
⦿ PARTIES
APPELLANT
A. U. Amadi
v.
RESPONDENT
Thomas Aplin & Co. Ltd
⦿ CITATION
(1972) LCN/1451(SC).
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Udoma JSC
⦿ APPEARANCES
* FOR THE APPELLANT
– Alhaji A.M.A. Rasaq.
* FOR THE RESPONDENT
– A.A. Ariori.
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⦿ FACT (as relating to the issues)
For the proper construction and application of the above provisions to the facts and circumstances of the present case on appeal, it is essential that the issues in controversy between the plaintiff and the defendant in suit No. P/99/63 be fully appreciated since the learned trial judge had considered them in his judgment.
The case of the plaintiff was that by a contract in writing contained in a document No. PH/1806 dated 30th May, 1963 which was made at Port Harcourt between the plaintiff and the defendant, the plaintiff agreed to buy from the defendant and the defendant agreed to sell to the plaintiff in Port Harcourt 700 bales of Norwegian stockfish in three separate vessels the first of which vessels to arrive in Port Harcourt in June, the second and third vessels before the end of July, 1963; that in consideration of the agreement and sale the plaintiff paid a deposit of 3700(pounds); that the first and second shipments respectively to arrive in Port Harcourt should consist of 200 bales each, and the third shipment of 300 bales; that each of the bales should bear the plaintiffs mark “U.G.O.”; that in June and July 1963 the plaintiff did not receive any of the stockfish, and as a result the plaintiff requested the defendant to reduce the price per bale of the stockfish failing which the contract between them to be considered rescinded by him.
According to the plaintiff, in August 1963, the defendant informed him that the stockfish had arrived, but that, on inspection, he found that the bales did not bear his mark “U.G.O.”; that he therefore treated the stockfish as not belonging to him, having regard to the terms of their contract. It was also the plaintiff’s case that as the fish did not arrive at the time stipulated in the contract and according to the quantities specified also in the contract, in that the first instalment to arrive consisted of 150 bales instead of 200, and the second of 250 instead of 200 bales, he therefore rejected the stockfish and eventually brought this action.
The substance of the plaintiff’s case was admitted by the defendant.
The plaintiff, in the course of trial, applied by motion, on notice, for leave to amend so as to plead the facts in his statement of claim relating to some questions to enable issues thereon to be properly joined. The motion was refused by the trial court Suo Moto.
⦿ GROUND(S)
1. The learned trial judge was wrong in law to have refused to entertain the plaintiff’s motion for leave to amend his statement of claim and also at the same time to have dismissed the motion without hearing the plaintiff.
2. The learned trial judge misconstrued the document No. PHI 1806 dated 30th May, 1964, exhibit 1, the written contract between him and the defendant by interpreting shipment therein in accordance with the meaning ascribed to the word in Stroud’s Judicial Dictionary as meaning “place of shipment” in Europe.
3. That the learned trial judge wrongly held that, quite independently of the time of the arrival of the stockfish in Port Harcourt, the plaintiff was not entitled to reject the bales of stockfish even though wrong quantities were delivered to the plaintiff contrary to the contract between the parties.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED]
1. GROUND 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RULING:
i. It appears that the amendment sought was necessary and proper such as the court was bound to make as, in the language of the provisions of Order XXXIV, “all such amendments as may be necessary and proper for the purpose of determining in the existing suit the real questions or question in controversy between the parties shall be so made.” (See England v. Palmer 14 W. A. C. A. 659; Oguntimeyin v. Gubere [1964] 1 All N.L.R.176. In the latter case, amendment of a writ of summons and statement of claim was allowed even at the close of the trial but before judgment was delivered.) There is also the statement by Bramwell L.J. in Tiddesley v. Harper 10 Ch. D. 396 at p. 397 in favour of giving leave to amend a statement of claim however late the proposed amendment unless where the applicant is acting malafide or where by his blunder he has done some injury to the respondent which cannot be compensated for by costs or otherwise.
ii. Furthermore, the high-handed manner in which the learned trial judge dealt with the application by dismissing it summarily without hearing the plaintiff at all was, in our view, a denial to the plaintiff of his right to be heard, a direct infringement of the fundamental maxim audi alteram partem which, in effect, is a denial of a fair trial. We are satisfied that the learned trial judge erred in law in refusing to entertain the application for leave to amend the plaintiff’s statement of claim, and this error has been aggravated by his order dismissing the application summarily and has certainly occasioned a miscarriage of justice. This ground of appeal accordingly succeeds and would alone have been sufficient to dispose of this appeal but for the fact that there are other grounds of complaint by the plaintiff.
2. GROUND 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RULING:
i. It is our considered opinion that the first sentence “on three separate vessels, first vessel in June, second and third vessels before end of July”, must be and was intended to be separately interpreted for the purpose of ascertaining the intention of the parties. Considered in this sense and construed in this way, the sentence must mean “On three separate vessels to arrive in Port Harcourt, the first such vessel to arrive in June, the second and third vessels to arrive before the end of July”. In the second sentence, the word “shipment” was intended to qualify quantities and sizes of the stockfish sold. Hence the phrase or expression: “First shipment – 100 bales; 50/50, 50 bales 40/60 and 50 bales 50/70”, etc. The word “shipment” as therein used therefore bears no relevance to the time of the delivery of the bales of stockfish at Port Harcourt or of placing the bales of stockfish on board ships anywhere in the world. This must be so because otherwise it would be importing into the contract ideas not patent on the face of it. In our view, if it was the intention of the parties or even within their contemplation that the word “shipment” should refer to the port or the time of shipping or of placing the stockfish on board any ship, then the word should have been followed not by the quantities and descriptions of the stockfish sold but by the name of the Port of shipment which, according to the shipping documents, exhibits 16, 17 and 18 and on the evidence was well known to the defendant at the time of making the contract to be Bergen, where in fact the loading took place and the stockfish was consigned to Port Harcourt.
ii. In view of the foregoing, we have reached the conclusion that the learned trial judge was wrong in law to have held that the word “shipment” referred only to the placing of the stockfish on board ships, and that since the stockfish had been shipped in Bergen in June and July, the defendant had discharged its obligation under the contract and that the plaintiff was not therefore entitled to rescind the said contract when the stockfish failed to arrive.
3. GROUND 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RULING:
i. With regard to the final complaint by the plaintiff it follows from our conclusion above that, as the stockfish failed to arrive in Port Harcourt in June and July as stipulated in the contract, the plaintiff was entitled to reject it and to repudiate the contract as, in our view, time was of the essence of the contract since the goods were meant for resale and this was known to the defendant.
AT THE END, THE SUPREME COURT STATED, “Judgment is entered for the plaintiff in suit No. P/99/63 in his claims with the direction that the case be, and it is hereby remitted to the High Court, Port Harcourt for damages, if any, to which the plaintiff therein is entitled to be assessed after the taking of relevant evidence and also taking into account and deducting there from the debt due to the defendant resulting from the differences between the purchase prices and cost prices of the 168 bales of stockfish sold by the defendant to the plaintiff as shown on exhibits 3, 4, 5, 6, 7 and 8. Costs in the High Court to abide the event. The plaintiff is entitled to the costs of this appeal assessed and fixed at 84 guineas”.
⦿ REFERENCED
⦿ SOME PROVISION(S)
Order XXXIV of the High Court Rules which provides: “The court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just.”
⦿ RELEVANT CASE(S)
In Sanday and Co. v. Keighley Maxted and Co. (1922) 91 L. J. K. B. 624 where the contract was for the sale of cargo to be shipped on a vessel “expected to be ready to load late September” whereas the vessel was not available until November, the buyer was held entitled to refuse the cargo.
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⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
* SUBSTANTIVE
It is settled law that in ordinary commercial contracts for the sale of goods the rule clearly is that time is prima facie of the essence with respect to delivery. – Udoma JSC. Amadi v. Aplin (1972)
