Ezeafulukwe Vs John Holt Limited (1996)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C. 

This is an appeal from the judgment of the Court of Appeal, Port-Harcourt Division, in which the lower court set aside the judgment of Aba High Court and dismissed the claim filed by the appellant. The appellant is Mr. Leonard Ezeafulukwe and he filed this action against John Holt Limited.

In the statement of claim the appellant averred that he entered into a contract agreement with John Holt Limited to purchase tinned geisha mackerel fish in tomato sauce. In the agreement, the appellant purchased 650 cartons of small size geisha and 160 cartons of large size geisha, all valued at N12,790.00. In his pleadings, the appellant further averred that on reaching Kumba, in the Republic of Cameroon, where he had his main store, he discovered that 577 cartons of the tinned fish which he purchased from the respondent were rotten and unmerchantable.

The appellant returned to Nigeria and requested for the return of the purchase money for the 577 cartons which were certified bad. When the respondent turned down his request and refused to refund his money he filed an action in Aba High Court and claimed N50,000.00 being special and general damages for breach of contract. The claim as pleaded in paragraph 17 of the statement of claim is as follows:

“general and special damages for breach of contract and warranty or in the alternative for total failure of consideration in respect of 577 cartons of small size geisha as follows:-

(a) Cost of 577 cartons of tinned geisha mackerel at the rate of N15.00 per carton of 100 tins = N8,655.00.

(b) Loss of profit being the difference between the cost price and selling price of N27.50 per carton = N7,212.50.

(c) General Damages = N34,132.50

Total = N50,000.00”

The defendant denied the claim. Pleadings were called and delivered and at the end of the hearing the learned trial judge granted items 17(a) and 17(b) of the plaintiff’s claim.

Dissatisfied with the decision of the trial court, the respondent filed an appeal before the Court of Appeal. In a well considered judgment, the Court of Appeal allowed the Appeal and dismissed the claim of the appellant. It is against the decision of the Court of Appeal that the appellant came before this court on five grounds of appeal. The following five issues have been formulated by learned counsel for the appellant for the determination of the appeal:

“(i) Whether the Court of appeal ought to have reversed the finding of fact of the learned trial Judge that it was the plaintiff with whom the Defendant contracted, when the said finding of fact has not been shown to be perverse or manifestly unreasonable.

(ii) Whether the contract which was entered into on the 5th of July 1979 and goods appropriated from a large stock on 12th July, 1979 was or was not a contract of sale of unascertained goods, and a fortiori a sale of goods by description.

(iii) Whether the Court of Appeal was correct when it held that the Appellant made his selection and can therefore not rely on the judgment of the Respondent.