Compulaw - 1st Indigenous Digital Law Library

Brief

Binding contract
Miliangos case

Facts

The Plaintiff/Company has claimed against the Defendant/Company in this action instituted in the Lagos State High Court, "the sum ofDM127,305.49 (N34,689.91) being the balance of payment in respect of Universal Coating and Laminating Plant for articial leather sold by the Plaintiff and delivered to the Defendant in Lagos. Also interest on the said sum of 9% per annum until the total sum is liquidated. The Defendant has refused, failed and/or neglected to pay inspite of repeated demand." It is important to state early enough that the naira equivalent of the German Currency as claimed in the Writ of Summons as N34,689.91k by the order of the trial Court has been amended as per paragraph 9 of the Amended Statement of Claim to read N265,005.33k. Both parties have filed and exchanged their respective pleadings and at the hearing have called witnesses in proof of their respective cases. In the final analysis, the trial Court has found in favour of the Plaintiff and has in entering judgment in respect of the two questions it has identified in its judgment reasoned and pronounced in these terms:

''The defence of the Defendant/Company is that the Plaintiff/Company did not ship certain 2 units of machinery, that is part of the consignment ordered and for this reason was not liable for the sum of DM127,308.49 claimed by the Plaintiff/Company. The reason for the Defendant/Company’s repudiate of liability for the claim came out only in evidence at the trial. The defence must therefore fail on the ground that the fact upon which the Defendant/Company sought to repudiate liability for the Plaintiff/Company’ claim was not pleaded. The evidence therefore led on this unpleaded fact goes to no issue.

In case I am wrong in holding that these facts upon which evidence was led are not pleaded, 1 must still find that the defence fails because the evidence led to show that the Plaintiff/Company shipped only 4 units of machinery in place of 6 units therefore was not satisfactory.

Upon the pleading filed in this case the preponderance of evidence led at the trial weighs in favour of the Plaintiff/Company. I hold that the Plaintiff/Company has succeeded in proving its claim;

On the second question identified by the trial Court it has reasoned and entered judgment as follows:

"The Defendant/Company which filed its Amended Statement of Defence after the Plaintiff/Company had made their amendment to paragraph 9 of the Amended Statement of Claim did not plead specifically in answer to the said amendment, I hold therefore that the Defendant/Company did not join issue with the Plaintiff/Company as to whether or not the Naira equivalent to DM127,308.48 was N265,005.33. Further the Defendant/Company was not entitled to claim in German Currency as the issue was not raised in its defence. It is therefore immaterial that the defence Counsel raised the issue in his final address. I will therefore enter judgment for the Plaintiff/Company against the Defendant/Company in the sum of DM127,308.49 or N265,005.33 the naira equivalent."

The Defendant being totally dissatisfied with the decision (that is on the aforesaid 2 questions) has appealed the same to the Lagos Division of the Court of Appeal (Lower Court) upon a Notice of Appeal filed on 4/5/87 in which it has raised five grounds of Appeal.

Issues

1
Whether the payment schedule (Exhibit "G") prepare and executed by...

Salzgitter GMBH V. Dosunmu Ind Ltd (2010) CLR 4(c) (SC)

Judgement delivered on April 30th 2010

Brief

Facts

Issues