The plaintiff and the defendant agreed to jointly float a company in order to trade in certain commodities. Pending incorporation of a holding company they agreed that each should carry on business in his own name. Further to the agreement, the defendant allowed the plaintiff to bring his goods into his premises for the first defendant to arrange marketing of the goods and pay into the account of plaintiff with International Bank for West Africa Benin City, the proceeds from the sale.

The plaintiff and the second defendant by separate letters of credit ordered nails and Iron rods from Britain. The vessel bringing these materials docked at Ogharefe Jetty, near Sapele. A firm of agency, Seagul Agencies was contracted by each party to clear the Cargoes of nails and rods.

After the plaintiff had sold some of his consignment at Sapele, the remaining items (121 boxes of nails) were delivered to the premises of second defendant at 14, Ugomoson Street, Benin City evidenced by way bills from port of delivery by Seagul Agencies.

The defendant sold the consignment on behalf of the plaintiff but instead of paying the whole proceeds from the sale to the plaintiff’s account at international Bank for West Africa Limited paid only part thereof into the account. Following several demands for payment the action leading to this appeal was instituted by the plaintiff against the defendants.

The trial court dismissed the plaintiff’s claim holding that the plaintiff failed to prove his claim.

Dissatisfied, the plaintiff appealed to the court of Appeal which in a unanimous decision allowed the appeal on all the issues raised by the appellant. The Court however, ordered a trial de novo after holding that there was clear evidence that some of the goods of the plaintiff in the yard of the defendants were sold and the proceeds paid into defendant’s account rather than the plaintiff’s account as agreed between the parties. It is against this decision that the plaintiff has further appealed to this court.

The plaintiffs sued in a representative capacity for themselves and on behalf of the entire members of Oturadewun Tefojukan, Kutimoju Dada branch of Aige family. The learned trial Judge held that there was no evidence of relationship of the 2nd and 3rd plaintiff with Chief T.K. Dada. He found that the 1st plaintiff is the son of one Efuneye, one of the grantees.

The plaintiffs/respondents predicated their claim on Exhibit A and from the content of Exhibit A, the parcel of land granted was to the named grantees. Their heirs and assigns in fee simple. It was not to the grantees for themselves and the entire members of Chief T.K. Dada's branch of Aige family. The learned trial Judge therefore dismissed the claim. The plaintiffs then appealed to the Court of Appeal and succeeded.