Henry Stephens Engineering Co Ltd V. Complete Home Enterprises Nigeria Ltd (1987)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

In this case both the appellant and the respondent have appealed from the decision of the Court of Appeal. Their appeals were dismissed on 20th October, 1986 with no order as to costs and we reserved our reasons for the dismissals till today. I now give my reasons.

The appellant was the plaintiff in the High Court of Lagos State sitting at Ikeja, while the respondent was the defendant to the action, which was brought, by the plaintiff on the 19th April, 1977. I will for ease of reference, henceforth refer to the appellant as plaintiff and the respondent as defendant. The plaintiff’s claim was as follows

“The plaintiff’s claim against the Defendant is for the sum of N28,082.65 being balance of cost of various Machines sold and delivered to the Defendant at its own request by the Plaintiff in Lagos during this period 31st January, 1975 to 22nd August, 1975 as per the invoices Nos. 4411 of 31/3/75, 4658 of 19/4/75,4765 of 21/5/75, 4809 of 5/6/75,5351 of 9/7/75 and debit note No. 365 of 22.8.75 respectively. The plaintiff also claims interest on the said balance at 10% per annum from March 1976 until judgment is given and thereafter at 5% per annum until payment of judgment debit and costs.

The Defendant has refused and or neglected to pay the said sum of N28,082.65 despite repeated demands”.

Pleadings, which were ordered by the trial court, were filed and served. The defendant made the following counterclaim in its amended statement of defence

“11. Whereof the Defendants Counterclaim

(1) For the sum of Fifty Four Thousand, Six Hundred and Seventy Six Naira, Twenty-Five Kobo (N54, 676.25) as special damages.

(2) General damages at the rate of N2, 000.00 per month from the 9th of July, 1975 till date of judgment or replacement by new crane.

(3) Replacement of the faulty crane by a new one or in the alternative refund of N66, 443.33 already paid to the plaintiffs by the Defendants for the faulty crane”.

It emerged from the pleadings and the evidence adduced at the trial that the plaintiff supplied to the defendants at Port Harcourt all the machineries, which were ordered by the defendant from the plaintiff. Amongst the machineries was a hydraulic crane described as “T. 788 Koehring Crane” whose net selling price was N93, 100.00. This crane was the bone of contention. Of the net price the defendant paid the sum of N66, 443.33 to the plaintiff. It was the balance of the price and some charges that were being claimed by the plaintiff.

As the crane developed trouble soon after its delivery and throughout the guarantee period, the defendant complained that it was not suitable for the purpose for which it was bought and was not therefore of merchantable quality.

The learned trial judge relying on the evidence before him and the provisions of section 14 subsections (2) and (3) of the English Sale of Goods Act, 1893 found that the crane was not merchantable and made order in the following term

“On the counter-claim I make the following awards in favour of the defendants and I so order: