MANDILAS & KARABERIS LTD V. OTOKITI

• Pages: 22-27

22



NIGERIAN SUPREME COURT CASES

[1963] N.S.C.C.

MANDILAS & KARABERIS LTD V. OTOKITI



5

MANDILAS AND KARABERIS LTD.



APPELLANTS

V

CHIEF YESUFU D. OTOKITI



RESPONDENT



10

SUIT NO. FSC 342/1961

FEDERAL SUPREME COURT.

BRETT,



F.J.

TAYLOR,



F.J.

BAIRAMIAN,



F.J.



15

22nd January, 1963.

Practice and Procedure - Written Contract not pleaded



Put in Evidence by

consent - Start - Written contract - Alleged oral contract.

20

ISSUES:

1.

Whether a court should consider an unpleaded written contract which is

admitted in evidence by consent, of the parties

2.

Whether a pleaded oral contract can be altered by an unpleaded written

contract, admitted in evidence by consent.



25

FACTS:

The company by a five years written contract loaned money to the defendant

who undertook to supply logs to the value of the loan. The defendant was to repay

the loan within six months. The company gave other credits to him, but stopped

further credit about six months after the date of the contract as the defendant failed



30

to supply sufficient logs. He had logs in the forest but could not move them as his

lorries needed repairs. He took them to the company's garage, where , though

he was told to remove them as the company would not repair on credit he left them

for a time. On returning to take them, they could not be found and the company

offered £700 for their value. The company sued for what he owed, he counter-



35

claimed for breach of contract, alleging an oral contract with the company, and

also for the value of the lorries and loss of profit on them. Neither side pleaded

the written contract, but it went in by consent at the trial. The company denied the

oral contract. The trial judge decided that the company's evidence was in conflict

with its pleading as it had not pleaded the written contract, and awarded the de-



40

fendant damages for breach of contract, but nothing in respect of the lorries. The

company cross-appealed in regard to the lorries and the company appealed from

the dismissal of its claim.

HELD:

1.

As the pleadirg of the company was not in conflict with the written contract and



45

it went in as evidence by consent, the Judge should have had regard to it on

the company's case.

2.

The company was entitled to stop giving further credits, and the counterclaim

for breach of contract should have been dismissed.

3.

The defendant was entitled to £700 for the lorries, there being no evidence that



50

they were worth more, but not to loss of profits, for he should have removed

his lorries promptly.