Xtoudos Services Nigeria Limited & Anor V. Taisei (W.A.) Limited & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The dispute between the parties in this appeal started in the Delta State High Court of Justice, Effurum where the plaintiffs took out a writ of summons against the defendants claiming the following reliefs:

“1. A declaration that the plaintiffs are the bonafide purchasers for value of all that disused unserviceable scrap properties, vehicles and equipment now lying and being at the defendants premises behind Ogheneovo Estate, off P.T.I. Road Effurum, within the jurisdiction of this Honourable Coul1 and described below:

1. One scrap Mistsubishi Electric Generator set yellow in colour.
2. Two scrap Mistsubishi tipper lorries without gear box nor injection pump and with only six each out of their normal 10 tyres, and another scrap Isuzu tipper lorry that has neither an injection pump nor an air compressor.
3. 7 bus seats meant for vehicle No. BD 6450 HA.
4. 1 Scrap crane with Deutche engine
5. 1 Scrap boom or crane handle that has two pieces
6. 1 Scrap gear box for an Isuzu Pump Truck.
7. 1 Yellow forklift with its name written in Arabic or other non-English alphabets.
8. An order of mandatory injunction commanding and compelling the defendants herein, whether by themselves their servants, agents and/or privies however to deliver to the plaintiff’s (sic) or allow the plaintiffs take delivery of the said properties, vehicles and equipment.

In the alternative to the above

‘The sum of 5 million (N5,000,000.00) only being special and general damages for breach of contract in that some time in April, 1994 at Effurum, the plaintiffs contracted with the defendants to purchase the said properties, vehicles and equipment amongst others but the defendants have despite repeated and sustained demands refused and or still refuses to deliver to the plaintiff (sic).”

Pleadings were duly filed, exchanged, amended and further amended before the matter proceeded to trial in the course of which the plaintiffs called two witnesses in support of their claims while two witnesses were called by the defendants. The case as made out by the plaintiffs from their pleadings and the evidence adduced by them reveals that by oral agreement the defendants sold unserviceable scrap properties comprising vehicles and equipment at a price of N740,000.00. The plaintiffs paid for the items by paying the sum of N100,000.00 in cash to the 2nd defendant while the balance of N640,000 00 was paid in a bank draft drawn on the First Bank of Nigeria, Effurum. After effecting the payment, the plaintiffs were allowed to collect the items purchased from the premises of the 1st defendant on various dates shown on the bills issued by the 1st defendant. The plaintiffs’ complaint in their action is that they were not allowed by the defendants to remove all the items purchased from the premises of the 1st defendant. The items the plaintiffs could not remove from the premises of the 1st defendant were listed in paragraph 13 of their statement of claim.

From the side of the defendants however, they asserted that the plaintiffs had removed all the items purchased from their premises. The defendants denied the list of the items purchased as given by the plaintiffs and gave their own list in evidence at the trial and the cost at N640,000.00 as against N740.000.00 given by the plaintiffs. At the conclusion of the hearing, the learned trial Judge on 22-1-1997, identified the bone of contention between the parties in the case as being:-

“Whereas it is the case for the plaintiff that he did not remove all the items purchased; the defendants are very stem in their posture that all the items purchased were removed.”

In proceeding to resolve this issue from the evidence, the learned trial Judge found that the plaintiffs had abandoned their claim for mandatory injunction compelling the defendants to deliver the scrap materials that were purchased but not delivered or removed from their premises and fell back to the alternative relief for special and general damages for breach of contract. After considering the alternative relief for special and general damages for breach of contract, the learned trial Judge came to the conclusion that the plaintiffs were entitled to N1,000,000.00 and made the award accordingly. Pan of this judgment reads:-

“Consequently judgment is hereby entered for the plaintiffs against the defendants jointly in the sum of N1 million naira being special and general damages for breach of contract in that the defendant (sic) failed to supply all the items bought by the plaintiffs.”

Dissatisfied with this judgment against them, the defendants appealed against it to the Court of Appeal raising mainly the issue of whether the sum of N1 million naira awarded by the trial Court against them as special and general damages for breach of contract was justified having regard to the proceedings, evidence led and the state of the law. The Court of Appeal after hearing the parties on their respective briefs of argument came to the conclusion that the defendants’ appeal had merit and consequently allowed it.

The award of special and general damages of N1 million naira was set aside and the claim of the plaintiffs was dismissed.

The plaintiffs who were not happy with the decision of the Court of Appeal against them have now appealed to this court upon six grounds of appeal from which five issues for the determination of the appeal were distilled. These five issues were adopted in the respondents’ brief of argument filed by the defendants who are now the respondents in this court, while the plaintiffs are the appellants.

The five issues in the appellants brief are:”