Emmanuel Nneji V. Zakhem Con. (Nig.) Ltd (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The appellant was the plaintiff at the Kaduna High Court, where he claimed against the defendant, damages for breach of contract, arising from the sale and hire of gas cylinders to the defendant. The parties filed and exchanged pleadings after which the suit was heard by Umaru Adamu J. In his judgment on 9/2/2000, the trial Judge made his final awards in favour of the plaintiff in these terms:

“1. Defendant shall pay the plaintiff cost of hiring 63 gas cylinders from 1st Dec., 1993 to 28th February, 1994 the sum of N283,500.00 (Two hundred and eighty three thousand, five hundred Naira).

2. Transportation on 8 occasions to Suleja at N4,000.00 (Four Thousand Naira only) per trip = N32,000.00 (Thirty-Two Thousand Naira only).
3. Defendant shall pay cost of hiring at N50.00 (Fifty Naira) per cylinder per day from 28th February, 1994 to 31st July, 1995.
4. Defendant shall pay cost of hiring at N50.00 (Fifty Naira only) per cylinder per day from 1st August, 1995 to 23/ 12/99.
5. Defendant shall pay general damages to the plaintiff in the sum of N125,000.00 (One Hundred and Twenty-Five Thousand Naira only).

Judgment entered in favour of the plaintiff as above I wish to further state that the defendant shall be entitled to counter-claim in the sum of N210,000.00 (Two Hundred and Ten Thousand Naira only) in his favour and against the plaintiff being refundable deposit paid to the plaintiff by defendant in respect of the 60 (sixty) cylinders.

The sum of N210,000.00 (Two Hundred and Ten Thousand Naira) shall be paid without interest. Judgment accordingly entered as above.

The 63 gas cylinders shall forthwith be returned to the plaintiff by defendant.”

The defendant was dissatisfied with the judgment. It brought an appeal against it before the Court of Appeal, Kaduna Division (hereinafter referred to as ‘the court below’). On 10-01-2002, the court below, in the majority judgment per Omage and Mohammad JJ.C.A.), allowed the appeal. Plaintiff’s claims were dismissed except that the order that the defendant return the 63 gas cylinders was upheld. The minority judgment by Umoren J.C.A. dismissed the appeal and upheld the judgment of the trial court except the first head of claim for the return of the 63 gas cylinders. The plaintiff was dissatisfied with the majority judgment of the court below and has brought a final appeal before this court. In the appellant’s brief filed for the plaintiff, the issues for determination in the appeal were identified as these:

“3.1 Whether the Justices of the Court of Appeal, Kaduna especially their Lordships, Omage and Muhammad JJ.C.A correctly evaluated the evidence before the trial court when they held that the initial tempo agreement between the parties tendered and admitted as exhibit 2, was the only evidence of the transact between the parties in the contract of supply of cylinders, therefore any relief not contained in the exhibit 29, cannot be sustained

3.2. Whether the appellant has suffered any damage known to law entitling him to an award of damages as granted by the trial court especially in view of the fact that respondent withheld and seized the appellant’s 63 cylinders for over six years.

The defendant’s counsel in his respondent’s brief formulate the issues for determination differently thus:

“1. Whether from the contract between the parties, evidence before the court and the finding of the court on hire of 63 gas cylinders, the lower court was right in setting aside the award of N6,943,000.00 being rent of 63 gas cylinders at N50.00 per cylinder per from 1st December 1993 to 23rd December, 1997.

2. Whether from the contract between the parties and evidence, the lower court was right in setting aside award of N125,000.00 general damages for breach contract and N32,000.00 cost of transport awarded: in honour of the appellant.

On a first look, one gets the impression that the two sets of issues formulated in the parties’ briefs are different. On a further analysis however, and viewed against the judgment of the court below, it becomes apparent that the parties merely projected into the formulation of their issues their respective standpoints on the case. I shall be guided by the appellant’s issues, he being the aggrieved, on the judgment of the court below. The two issues will be considered together. As a starting point, it is desirable to have a fair understanding of the nature of the dispute out of which this appeal arose. The plaintiff, as he pleaded in his amended statement of claim, carried on the business of the supply of gas in gas cylinders. On 17/9/93, the plaintiff and the defendant entered into a written agreement. The plaintiff was to sell gas to the defendant in cylinders on a continuing basis. The defendant, which was based in Suleja, Niger State, was to pay for the cost of transportation of the gas cylinders from Kaduna, the base of the plaintiff to Suleja. The plaintiff supplied an initial 60 gas cylinders to the defendant against which the defendant deposited N210.000.00 at N3,500.00 per cylinder. Further supplies were made to the defendant. At the time the suit was brought, plaintiff had a total of 63 gas cylinders with the defendant. It was pleaded that at the time the defendant stopped buying gas from the plaintiff, he did not return the 63 empty gas cylinders. Rather, the defendant used the empty cylinders to buy gas from other gas dealers. The plaintiff further pleaded that, between 1/12/93 and 28/2/94, it cost N50.00 per cylinder per day to hire a gas cylinder and this rose to N200.00 and later to N300.00 by 1/8/95. The plaintiff therefore claimed against the defendant as follows:

“(a) Use of the 63 gas cylinders for 3 months at N 1,500.00 per cylinder per month

8th November ’93 – 8th Feb., ’94