A. G. IJALE (PLAINTIFF)

v.

                      A. G. LEVENTIS AND COMPANY LIMITED (DEFENDANTS)

                          (1961) All N.L.R. 792

Action on Contract.

The plaintiff, who was formerly employed by the defendants as a produce buyer, brought this action against the defendants claiming the sum of £20,587-2s-8d as balance of overriding commission, salary account, value of four lorries, and labour and grading expenses.

The plaintiff had purchased a number of lorries from the defendants for the purpose of his work as a produce buyer. The lorries were serviced and repaired when necessary by the defendants who, amongst other things, also ran a garage. An engineering account was kept in respect of the lorries. Shortly before the plaintiff's employment was terminated, he handed four of the lorries over to the defendants to be overhauled and sold and the proceeds credited to his account with the defendants.

The plaintiff's employment was terminated on the 10th June, 1953; on that date the last Produce Return signed by the parties showed that he was indebted to the defendants in the sum of £25,025-19s-8d.

On the 23rd of July, 1953, the present defendants instituted an action against the plaintiff for, inter alia, that amount, and applied, in the course of the action, for an interim Attachment of the movable and immovable property of the plaintiff; including the four lorries the value of which form part of the plaintiff's present claim: In an annexure to the Affidavit sworn in support of the application, the value of the lorries was given as £1,000 each.

After various correspondence was exchanged between the solicitors acting for the parties, the defendants employed a licensed auctioneer to sell the lorries (which he did in May 1955, for a total of £260-16s.) The question of lorries, though raised in the 1953 suit, was not then pursued. The court was then informed that the lorries would be sold and the proceeds credited to the plaintiff.

The present plaintiff pleaded neither a Counter-Claim nor Set-Off in the 1953 action. Judgment was given in favour of Messrs Leventis in that action; and, apart from a slight variation, was generally confirmed on appeal by the Federal Supreme Court. The present plaintiff has appealed to the Privy Council in that case and that appeal was not decided at the time the present action was heard.

In 1958, the defendants instituted an action against the plaintiff for inter alia the sum of £96-5s-6d balance due to them on the plaintiff's engineering account. The matter was referred to a referee, who, in making his report, found that a credit of £186 representing proceeds of sale of one of the lorries had been given to the plaintiff. A copy of the Ledger Sheet in question was tendered in evidence in the present action and from entries therein, and from the evidence of the auctioneer, the court found that credit for the proceeds of the sale of the four lorries had been given to the plaintiff.

The defendants denied the plaintiff's present claims and pleaded that they were barred by limitation; that the plaintiff was estopped from asserting that the lorries were seized because they were sold by auction with the approval of the plaintiff and the amount credited to his engineering account with the defendants; and that the plaintiff was estopped from raising the other matters contained in his claim having regard to his Statement of Defence and evidence in the previous action between the parties, and his failure to plead a Counter-Claim or Set-Off therein.

HELD:

(1) Where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that action to bring forward their whole case; and will not allow (except under special circumstances) the parties to open the same subject of litigation in respect of a matter which should have been brought forward; merely because they have, from negligence, inadvertence or accident, omitted part of their case.

(2) Except in special cases, the plea of res judicata applies not only to points upon which the court was actually required by the parties to form an opinion and pronounce Judgment, but also to every point which properly belonged to the subject of that litigation, and which the parties, exercising diligence, might have brought forward at the time.

(3) Where under the terms of a contract payments become due from time to time, a cause of action in respect of each such payment arises on its due date and, as regards that particular payment, time begins to run from that date against the person entitled to receive it.

Action dismissed.

Cases referred to:-

Hoystead v. Commissioner of Taxation, (1925) A.C. 155; 94 L.J.P.C. 79; 134 L.T. 354; 42 T.L.R. 207.

The General Manager, Nigerian Railways v. U.A.C. Limited, 14 W.A.C.A. 631.

Ordinance referred to:-

Evidence Ordinance, Cap. 62 section 53.

ACTION on Contract.

Alakija for the Plaintiff.

Bentley for the Defendants.

De Lestang, C.J.-The plaintiff was employed by the defendants as a produce buyer from the 19th May, 1950 until his employment was terminated on the 10th June, 1953. The arrangement between the parties was that the plaintiff should receive periodical advances of money from the defendants with which to buy cocoa and palm kernels for the defendants. The produce so purchased would be kept by the plaintiff in a store under his control. The plaintiff would then have the produce graded by a produce examiner and deliver the graded produce to the defendants. On receipt of the graded produce the defendants would issue to the plaintiff the original and a copy of a way-bill stating the quantity of the particular produce received. The plaintiff would, in due course, be credited with the value of such produce. The plaintiff also kept a Register called "Register of Transactions" (hereinafter called the register) which contains printed forms numbered consecutively in duplicate and which is designed to form a full and continuous record of the produce transactions between the plaintiff and the defendants. In the first half of the return the advances made to the plaintiff and the produce delivered to the defendants are recorded as also are sometimes the commission, etc., due to the plaintiff and a balance is struck. In the second half of the return the purchases made by the plaintiff and other relevant information are recorded and the return is then signed by both the plaintiff and the defendants. A copy of the return duly completed and signed by both parties remains in the Register while the original goes to the defendants for posting into their own account books.

The last produce return signed by the parties was made on the 10th June, 1953, the date on which the plaintiff ceased to be employed by the defendants. That document shows that on that date the plaintiff was indebted to the defendants in the sum of £25,025-19s-8d on the produce transactions but that the plaintiff had in his store 73½ tons of upgraded cocoa for which no credit was given to him by the defendants. On the 23rd July, 1953, the present defendants instituted an action against the present plaintiff-Suit No. 428/53-in which they claimed the above-mentioned amount as being the balance due to them on an alleged account stated or alternatively as being money had and received by the present plaintiff for their use. There were two other claims in the action which are not material for the purpose of this case. The alleged account stated was nothing more than the last produce return in the Register which I have already mentioned. The present plaintiff's substantial defence to that action was that before a balance could be struck on the produce transactions account, the upgraded produce, appearing on the last return of the transactions mentioned above, had to be graded and its value credited to him. The action was tried by the then Chief Justice, who gave an interim decision in which he held that the claim, insofar as it was based on an account stated, failed, but that the then plaintiffs (the present defendants) were entitled to sue on a quasi contract for money had and received for their use but also that in order to reach a final decision on that issue the value of the upgraded produce must be ascertained. He accordingly adjourned the case to hear evidence on this question. Unfortunately the evidence was taken by another Judge who found the value of the upgraded cocoa to be nil because the evidence established that there was no upgraded cocoa in the store at all. Having so found he remitted the case to the Chief Justice for final Judgment. The learned Chief Justice upon that finding of fact entered Judgment for the present defendants for the amount claimed with interests and costs. The present plaintiff appealed to the Federal Supreme Court which ordered that he should be credited with the value of upgraded cocoa which the learned Chief Justice had found existed, and reduced the amount of the Judgment by the estimated value thereof. I am informed that the present plaintiff has further appealed to the Privy Council.

The plaintiff alleges that both by agreement with the defendants and according to the custom of the trade he was entitled throughout the period of his employment inter alia:-

(a) to a monthly salary of £25

(b) a commission on each ton of graded produce delivered to the defendants, and

(c) to the refund of storage and grading expenses at fixed rates per ton of produce graded.                                                                                                                                                                                                                         In the present action the plaintiff claims from the defendants as per his amended writ of summons, £20,587-2s-8d made up of the following items, which he alleges in paragraph 10 of his Statement of Claim the defendants omitted to credit him in the 1953 suit.

                                                                                                                                                                £        s D                

1. Balance of over-riding commission for cocoa and palm kernels

short paid as per produce report books tendered in Suit No. 428/1953

between same parties. 310 tons, 1 cwt. 1qrt. at 75s perton                                                                 1,157 14 8

2. Balance of salary account May 1950 to June 1953 at £25 per month = £950

less amount credited in exhibit 'A' Suit No. 428/53 =£600. Balance                                                        350  0 0

3. Value of 4 lorries returned to defendant                                                                                            4,000  0 0

4. Value of graded cocoa not accounted for by defendants as per Exhibits 'D' and 'E'

in Suit No. 428/53 1,120 bags (16 bags to 1 ton) at £174-9s-0d                                                        12,000  0 0

5. Labour and grading expenses on 3,586 tons, 1 cwt. 1 qr. at 16s per ton                                         2,867  0 0

                                                                                                                                                 (Sic) £20,587  2 8

The defendants deny these claims and plead that they are barred by limitation. As regards the lorries they further contend that the plaintiff is estopped from asserting (as he does in his Statement of Claim) that they were seized because this is admittedly incorrect and because they were sold by auction with the approval of the plaintiff and the amount realised credited to his engineering account with the defendants, and that in any event all questions relating to the lorries are sub judice being a subject matter in another action, namely LD/40/58. As regards the other claims they further contend that they were finally determined in the 1953 suit, that the present plaintiff is estopped from raising those matters again having regard in particular to his statement of defence and evidence in that Suit, and his failure to plead a counter claim or set off therein.

It is convenient to deal with claims No. 1, 2, 4 and 5 together and separately from claim No. 3 relating to the lorries because the former, unlike the latter, arise out of produce transactions.

I propose to begin with those four items of claim and to consider first whether they have been established.

The first item relates to commission alleged to have been short paid. The plaintiff testified that he was not credited with commission in respect of graded cocoa delivered to the defendants between November 1950 and March 1951, totalling 300 odd tons at 75s per ton. To this the defendants replied that although commission was not entered in the Register every time a delivery of graded produce was made it was entered from time to time and on occasions commission in respect of both cocoa and palm kernels were credited together in the same entry. They point to one entry at 674 of the Register which relates to commission in respect of "purchases" for the period October 1950 to March 1951 and say that this includes commission on deliveries of cocoa made during that period. The plaintiff says that that entry relates to commission for palm kernels but there is nothing to support that allegation. There is also a discrepancy which has not been explained between the amended writ and the Statement of Claim in regard to the amount of that claim. There is also an entry at 295 of the Register which supports the defendants' allegation because in that entry an adjustment is made in the amount of commission for May/September 1950 and October/March 1951. Those dates cover the period of this claim. Moreover as the Register was kept by the plaintiff it was clearly up to him to see that all credits due to him were entered in it. Every return was signed by him as being correct and he is now in effect trying to falsify those returns. In my view the evidence led in support of this claim is purely negative and falls far short of its purpose. It does not, when weighed with the evidence given by the plaintiff and the documents produced, establish the plaintiff's claim. I do not therefore find this claim proved.

The second item of claim is in respect of salary for May 1950-December 1951 inclusive. The plaintiff testified that he was not credited with salary for that period. The Register shows that he credited on the last return of transaction with salary from July 1951 till June 1953 and the defendants have been unable to point out any other credit entry for salary, either in the Register or in their own ledgers. It was vaguely suggested that there was no agreement to pay salary for that period and that it is unusual to pay anything but a nominal salary to produce buyers. There is, however, no evidence to support this suggestion and I see no good now to disbelieve the plaintiff on this question. Consequently I find this claim proved.

The next item of claim relates to 1,120 bags of graded cocoa alleged not credited to the plaintiff. In order to appreciate this claim it is necessary to bear in mind the procedure followed which I have already described. Suffice it to say here that the plaintiff should receive a way-bill for every delivery of graded produce to the defendants but he alleges that he received no waybill in respect of those 1,120 bags of cocoa and for that reason they were not entered into the first part of the Register because only deliveries covered by way-bills were entered there. There is no evidence when these alleged deliveries amounting to 1,120 bags were made, and I have no evidence that they were entered elsewhere in the Register as upgraded produce as they should have been if they really existed. Again, I must repeat that it was up to the plaintiff to see that he got a way-bill for the produce delivered and the fact that he got no way-bill for these 1,120 bags is prima facie evidence that no such produce was delivered. The defendants had no control over graded produce until it was delivered to them in their store and even if it is accepted that 1,120 more bags of cocoa were graded than are covered by way-bills this does not prove that the 1,120 bags were received by the defendants. I do not find this claim proved.

The last item of claim under this head concerns grading expenses on 3,586 tons of cocoa. The plaintiff testified that he was not credited at all for grading expenses in respect of cocoa delivered to the defendants. He said that altogether he delivered 3,586 tons of cocoa between November 1950 and June 1953 and claims a refund of those expenses at the rate of 16s per ton. The defendants answered that the plaintiff must have been credited for what was due to him since he signed the returns as being correct. They say that the grading expenses and commission were sometimes lumped together and they point to one entry at 4 of their ledger (exhibit P. 13) where this was done.

It is quite impossible without a detailed examination of the Register and other books to say with certainty whether the plaintiff was or was not credited in respect of grading expenses for cocoa. On the other hand it is difficult to believe that he was not when he knew his rights and signed the returns as being correct and failed to allege non-payment in the 1953 case. On the other hand the defendants have been unable to point to any entry either in the Register or in their ledgers in which grading expenses for cocoa has been credited to the plaintiff. In these circumstances I consider that the claim has not been rebutted and must be held to have been established.

The result is that only the claim for salary (item 2) and the claim for grading expenses (item 5) have been established.

I will now deal with the other defences in turn on the assumption that all the four items of claim have been established.

I shall begin with the defence of estoppel. Shortly put that defence is that in the 1953 suit, the present defendants sued the present plaintiff to recover payment of the balance due to them on the produce transactions. They produced in that action the last return showing that after giving credit for salary the balance owing by the present plaintiff was £25,625-19s-8d but also showing that there was in existence 73½ tons of upgraded cocoa. They argue that as in that case the present plaintiff-leaving aside the question of lorries-did not so much as hint that he had not been credited with the amounts he is claiming in the present action but merely contented himself with contending that no final balance could be struck without his being given credit for the 73½ tons of upgraded cocoa, he cannot now be allowed to put forward the present claims, which he could and ought to have raised then. The plaintiff's answer to this contention is that he was not bound to make these claims in the 1953 case. In my view, the plaintiff is clearly estopped from making those claims now. He is plainly seeking in the present action to reopen the 1953 case on the ground, as stated in paragraph 10 of his Statement of Claim, that "the defendants in computing figures for their claim in the Suit No. 428/53 omitted to credit plaintiff with the following items." Then follow the items of claim in the present case with which I have been dealing.

The plaintiff cannot, in my view, be allowed to do that and the doctrine of estoppel per rem judicatam applies. That doctrine is enshrined in section 53 of the Evidence Ordinance which reads:

Every Judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the Judgment itself to be the ground on which it was based, unless evidence was admitted in the action in which the Judgment was delivered which is excluded in the action in which that Judgment is intended to be proved.

The principle underlying that section is borrowed from English law and was stated thus by the Privy Council in Hoystead v. Commissioner of Taxation, (1925) A.C. 155, at 170.

The rule on this subject was set forth in the leading case of Henderson v. Henderson (1) by Wigram V.-C. as follows: 'I believe I state the rule of the court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time'. This authority has been frequently referred to and followed, and is settled law.

Applying these principles to the facts in the present case I hold that the Judgment in Action No. 428/1953 is conclusive of the indebtedness of the plaintiff to the defendants on the produce transactions and that the plaintiff is estopped from putting forward the present claims.

I shall now deal with the defence of limitation. As the present action was instituted on the 14th May, 1959, it is plain that any cause of action which arose before the 13th May, 1953, is barred by limitation. I propose to examine each claim separately and then deal with the contentions of the parties in respect of these altogether.

The first is for commission which the plaintiff alleges was not credited to him in respect of graded cocoa delivered to the defendants between November 1950 and March 1951. The plaintiff stated in his evidence that commission was due as soon as the graded produce was delivered to the defendants and that he could have sued them for it right away. An examination of the Register shows however that, commission was not entered at the same time as were deliveries.

The second is for unpaid salary totalling £350. The evidence shows that this claim is in respect of salary from May 1950 to June 1951, both months inclusive. The plaintiff stated in evidence that salary was due monthly and ought to be credited monthly into his account. Here again the Register shows that salary was not credited at all until the last return was made on the 10th June 1953.

The next item of claim is in respect of graded cocoa for which no way-bills were issued. The plaintiff cannot say when the alleged deliveries were made and bases his claim solely on the difference between the quantity of cocoa graded as recorded in exhibit P. 3(B)-a book which he keeps himself and about which, though exhibited, no evidence was given-and the quantity for which way-bills were issued and duly entered in the Register. It is plain, however, that those alleged deliveries not covered by way-bills could not have been made after the 13th May, 1953. According to the Register only 422 bags of cocoa were delivered after that date and 73½ tons remained upgraded. These are all accounted for.

The last claim is in respect of grading expenses on 3,586 tons odd of cocoa delivered between November 1950 and June 1953. The Register shows that of these only 26 tons odd were delivered after the 13th May, 1953.

The plaintiff argues that although he was entitled to his salary monthly and to payment of both commission and for graded produce delivered immediately the deliveries were made and could have sued for those payments right away he did not know that those payments had not been credited to his account until June 1953. Relying on General Manager, Nigerian Railways v. U.A.C. Limited, 14 W.A.C.A. 631, he contends that time did not begin to run against him until the true position was known to him.

The defendants on the other hand contend that the various causes of action arose from time to time as and when the payments were due. In my view the defendants contention is the correct one and the case relied on by the plaintiff is clearly inapplicable to the facts of the present case. In that case the action was for breach of contract of bailment and it was held that the cause of action did not arise until the refusal of the bailee to deliver the goods was made known to the bailor. In the present case the plaintiff knew whenever his right to payment either for salary or for produce and commission arose. He kept the Register into which the transactions should be recorded and he was in a position to cause the necessary entries to be made therein as and when they arose. As soon as a payment was due to him a cause of action in my opinion arose in respect thereof. It follows from this that the causes of action in respect of the first, second and fourth items of claim arose before the 13th May, 1953 and are consequently time-barred. As regards the fifth item of claim, it is also time-barred except in respect of 26 odd tons delivered after the 13th May, 1953. To sum up, my decision on those four items of claim is as follows. I only find items two and five proved. I hold that the defence of estoppel succeeds on all four items and I hold that the defence of limitation succeeds on all the items except as to a part of item five.

I now come to the claim in respect of the lorries. It would appear that for the purpose of his work as a produce buyer the plaintiff purchased a number of lorries from the defendants. The lorries were serviced and repaired when necessary by the defendants who, amongst other things, also run a garage. An engineering account was kept in respect of the lorries. Shortly before the plaintiff's employment was terminated, the plaintiff handed over four of his lorries to the defendants to be overhauled and sold and the proceeds credited to his account with them. In the course of the 1953 suit the present defendants applied for security or alternatively for an interim attachment of the movable and immovable property of the present plaintiff, including the four lorries under reference and in an annexure to an Affidavit in respect of an application sworn to by an employee of the present defendants, the value of those lorries is given as £1,000 each. By a letter dated the 15th June, 1954, the defendants solicitors informed the plaintiff's solicitors that the offers received for the lorries were low and they sought the plaintiff's approval to sell. Again by letter dated the 29th July, 1954, the defendants' solicitors suggested that the lorries be sold by auction and sought the plaintiff's agreement to that course. On the 6th August, 1954, the plaintiff's solicitors replied "the lorries have been in your clients' possession at all material times and our client will be satisfied if they are sold at any price not below the value given by your clients' accountant." That was a reference to the value given in the Affidavit to which I have referred. The defendants' solicitors replied on the 26th August, 1954 thus:-

With regard to your second paragraph, the value of your client's lorries is the amount which they will fetch in the market regardless of what value may have been put on them by a non-technical person. We have always invited your client's co-operation in the sale of these lorries. If he is not prepared to co-operate now, our clients will be obliged to proceed with the sale.

The defendants in due course employed a licensed auctioneer to sell the lorries which he did in May 1955 for a net total sum of £260-16s-0d. Although the question of the lorries was raised in the 1953 suit it was not proceeded with and the court was then informed that the lorries would be sold and the proceeds credited to the plaintiff.

In 1958 however, the defendants instituted an action against the plaintiff (Suit No. LD/40/1958) in which they claimed inter alia from the plaintiff £96-5s-6d as being the balance due to them on the plaintiff's engineering account which I have already mentioned.

This account together with the other claims in the action was referred to a referee who reported in due course to the effect that the amount claimed by the defendants in that action was correct. After dealing with the ledgers he said:-

A credit of £186-0s-0d representing proceeds of sale of S/B Lorry G. 9611 has been given to the defendant. I find therefore that in respect of the Engineering Account a sum of £96-5s-6d as shown in Ledger Sheet No. 1-Account No. A 2/27 -is owing by the defendant to the plaintiffs.

A copy of the ledger sheet in question was tendered in evidence in the present action and from the entries therein and from the evidence of the auctioneer it is clear that credit was given to the plaintiff for the proceeds of the sale of all four lorries.

By the third item of claim in the present action the plaintiff claims from the defendants £4,000 being the value of the four lorries and he relies on the opinion expressed in the Affidavit in the course of the 1953 suit, to which I have already referred, as being conclusive evidence of the value of the lorries. The defendants contend that the opinion therein expressed was that of a layman given "on information and belief" and is not conclusive. They say that the real value is the price obtained by the sale by auction which was properly conducted by a licensed auctioneer. They also contend that the plaintiff is estopped from litigating this question of lorries as it was finally decided in the 1958 case.

The plaintiff, relying on the first sentence in the passage which I have quoted above from the report of the referee contends that the reference dealt with one lorry only and not all four of them. In that event however he concedes that he can only claim in respect of three of the lorries.