3PLR – ABIODUN V. VASAD N.V

POLICY, PRACTICE AND PUBLISHING,  LAW REPORTS – 3PLR

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ABIODUN

V.

VASAD N.V

FEDERAL SUPREME COURT OF NIGERIA

F.S.C. 336/1962

6TH JUNE. 1963.

3PLR/1963/4 (FSC)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS:

SIR ADETOKUNBO ADEMOLA. C.J.F. (Presided)

SIR LIONEL BRETT, F.J. (Read the Judgment of the Court)

SIR VANE BAIRAMIAN, F.J.

BETWEEN

1. F.A. ABIODUN
2. L.A. OTUSANYA

AND

VASAD N.V

MAIN ISSUES

PRACTICE AND PROCEDURE – EVIDENCE – Documentary evidence – Duplicate copy of an invoice – Whether proof of delivery of goods therein mentioned.

COMMERCIAL LAW – SALE OF GOODS – Delivery of goods – Duplicate copy of invoice -Whether positive proof of.

PRACTICE AND PROCEDURE – Evidence – Non-objection to an invoice – Effect thereof.

REPRESENTATION

F.O. Akin rele-for the Appellants.

1. V Davis -for the Respondents.

BRETT, F.J. (Delivering the Judgment of the Court): The plaintiffs in this case are manufacturers and merchants having their office in Doetinchem, Holland, and the defendants are traders carrying on business in Lagos. The appeal has been brought by the defendants against the judgment of the High Court of Lagos awarding the plaintiffs the sum of £4,429.18. 8d., which they claimed as the balance price of various articles of merchandise sold and deli­vered by them to the defendants.

The way in which this sum is arrived at is shown in two documents at­tached to and forming part of the Statement of Claim. One of these, of which the original was produced in evidence as Exhibit 5, is a statement of account sent by the defendants to the plaintiffs under cover of a letter (Exhibit 4) dated the 13th September, 1956. In it the defendants admit the receipt of goods to a total value of £13,063. 10. Id. on 34 separate invoices and credit themselves with payments to the amount of £2,415. 1. 6d. They thus admit an indebtedness at that date of £10, 648. 8. 7d. The other document is a letter from the plaintiffs to the defendants dated the 14th November, 1958, and headed “Statement of Account as per 1. 10. 1958”. A copy of it was tendered in evidence and rejected, but even if it is of no evidential value it is part of the Statement of Claim, and it is difficult to understand why it was not copied for the use of the Court. It begins by referring to the defendants’ admission of indebtedness to the extent of £10, 648. 8. 7d. on the 13th September, 1956, and by saying that that sum must be increased by £737. 17. 10d. in respect of three invoices omitted from Exhibit 5, and by £259. 8. 1d. in respect of an ex­cessive credit claimed for payments made. It then credits the defendants with various subsequent payments to a total of £7, 979. 16. 1d., and debits them with sums due on six later invoices to a total of £564. 0. 3d., thus pro­ducing a total sum due of £4, 229. 18. 8d.

In paragraph 3 of the Statement of Defence, the defendants denied re­ceiving any article from the plaintiffs and put the plaintiffs to strict proof of the averment that the goods mentioned in the invoices referred to had been shipped. In the face of Exhibit 5 the general denial was patently untrue, and the defendants have made no attempt at any time since these proceedings began to differentiate between the goods which they admit receiving and those which they do not.

The only witness called for the plaintiffs, other than a purely formal one, was Mr.. M.O. Luther, a general commission agent residing in Lagos, who held a power of attorney from the plaintiffs authorizing him to take pro­ceedings on their behalf in Nigeria. He was unable to testify of his own knowledge to any fact establishing the liability of the defendants, but he pro­duced the documents on which the case for the plaintiffs must stand or fall. The most important of these, apart from Exhibits 4 and 5, to which I have al­ready referred, are contained in Exhibits 6 and 7. Exhibit 6 consists of dup­licate copies of the forty-three invoices which the plaintiffs say represent all the goods supplied by them to the defendants; Mr.. Luther said that the orig­inals were with the Customs Department and the copies were admitted without objection by the defence. Exhibit 7 consists of twelve lengthy letters written by the defendants to the plaintiffs between the 13th December, 1954, and the 21st March, 1956, in which the defendants discuss their deal­ings with the plaintiffs with great particularity, and refer to orders which they are placing with the plaintiffs.

The defendants put in two documents in cross-examination of Mr.. Luther and called no witnesses. They did nothing either to challenge the items debited against them in the claim or to show that they had made pay­ments for which they had not been given credit. It was not suggested to Mr.. Luther that the duplicates of the invoices were not genuine, or that the goods mentioned in them had not been delivered, and although it has been submit­ted on appeal that delivery of the goods was not proved the point was not taken in the closing address for the defendants in the High Court, which was devoted almost entirely to a point of law which has not been thought worth pursuing in this Court.

On any view of the evidence the plaintiffs are entitled to judgment for the sum admitted to be owing in Exhibit 5, less the subsequent payments which they themselves credit to the defendants in the Statement of Claim, and the real issue in this appeal is whether the plaintiffs have proved their claim in respect of the nine invoices not included in Exhibit 5. Since the de­fendants elected to call no evidence to refute any part of the case for the plaintiffs, it is only necessary to decide whether the plaintiffs can be said to have established a prima facie case; if they did the Judge was undoubtedly entitled to find in their favour. Where the matter is genuinely disputed, no-one would suggest that a duplicate copy of an invoice is positive proof by it­self that the goods mentioned in it were delivered or even dispatched, but it seems a fair conclusion to draw from the evidence given without objection in this case that the defendants received the originals of the invoices and that they have at no time complained that the goods mentioned in any particular invoice were not delivered, though Exhibit 9, put in by the defence, shows that they were writing letters to the plaintiffs at least up to February, 1958. Failure to take objection to an invoice does not necessarily imply any admis­sion that the goods were received, but as between a trader in Nigeria who has ordered goods from overseas and the supplier overseas who has entrusted the goods to a carrier for delivery, it is a matter specially within the know­ledge of the trader in Nigeria whether the goods have been duly delivered, and I think a certain inference arises from silence in such a case. Having re­gard to the course of dealing between the parties as disclosed in the corres­pondence, I am of the opinion that the invoices, coupled with the silence of the defendants, are some evidence that the goods were delivered and that in the absence of any evidence in rebuttal, or of any submission that there was no case to answer on any part of the claim, the Judge was entitled to decide the case as he did. I would dismiss the appeal with costs assessed at 30 guineas.

ADEMOLA C.J.F: I concur.

BAIRAMIAN, F.J.: I concur.

Appeal Dismissed.