Maobison Inter-link Associated Limited V. U.t.c. Nigeria Plc (2013)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the court of Appeal, Port Harcourt Judicial Division, Holden at Port Harcourt, hereinafter called the court below, delivered on the 16h day of January, 2003. The appellant herein was the plaintiff before the trial court wherein it had instituted an action against the respondent herein as defendant and in paragraph 17 of the statement of claim filed on 25/10/94 claimed, inter alia, as follows:

“The plaintiff claims against the defendant the sum of N10,000,000.00 being special and general damages for breach of contract.”

After pleadings were filed and exchanged and issues, were joined, the case proceeded to hearing. In its judgment delivered on 3rd November, 1999 judgment was given in favour of the plaintiff against the defendant as claimed.

Aggrieved by the decision of the trial court, the respondent proceeded to the court below.

The gist of the case goes simply thus: The appellant had sometime approached the respondent for purchase of a Dorman Diesel Generating set which the respondent agreed to sell at an agreed sum, A receipt, Exhibit A was issued upon payment of the agreed sum as evidence of the transaction. The set was to be delivered within four (4) days after the payment of the full purchase price. Upon contact with the Lagos Headquarters, the respondent later learnt that the last Dorman brand of generating set had been sold and delivered hence was no longer available to be sold and delivered to the appellant as agreed. The respondent then offered to sell to the appellant a Perkins brand generating set of the same 500KVA capacity but of a higher quality which the appellant was said to have agreed to buy in place of the Dorman brand it had earlier sought to buy. The appellant denied it ever agreed to take Perkins brand in place of Dorman brand of generating set.

However, the Perkins generating set was delivered to the appellant’s factory even though the appellant claimed to have written Exhibit B earlier to terminate the original agreement. But the respondent stated that the chairman of the appellant who testified as PWI, not only agreed to buy the Perkins brand but was present when the set arrived from Lagos.

Exhibit B was a letter written on the letter head of Polema Industries Limited purportedly meant to terminate the agreement to purchase Dorman brand of generating set by the appellant but the respondent claimed that not only was the said letter not delivered to it after the Perkins generating set had been delivered to the appellant and duly acknowledged, the Polema Industries Limited that claimed to have written was not part of the contract to buy and sell Dorman brand generating set.

It is interesting to note that the court below had found that the Perkins set was actually delivered to the premises of the appellant and its workers took delivery and duly signed the way Bill, Exhibit c on 19th August, 1994. The sales invoice was also admitted as Exhibit F. For this reason, the Court below held that the contract had been performed.

The court below had found the appeal meritorious and allowed same while the counter claim of the respondent was also allowed and granted as claimed. That decision led to the instant appeal filed with a Notice of Appeal on 4th February, 2003 at the court below on three (3) Grounds of appeal.

However, on 6th April, 2007 the appellant had filed four (4) additional Grounds of Appeal numbered as Grounds 4, 5, 6 and 7 respectively. This was latter discovered by the counsel to have been filed out of time and counsel sought leave of court to regularize, with a deeming order for both the said additional grounds of appeal and appellant’s brief of argument.

It is instructive to note that on 27th January, 2010, the said appellant’s application was taken in chambers and was granted in part. Appellant was granted leave as sought, to file additional grounds of appeal but the deeming order sought was refused. This meant that the appellant was required and expected to file yet the new additional grounds of appeal and appellant’s brief of argument.

When the matter came up for hearing on 5th February, 2013, both counsel identified their respective briefs of argument, adopted and relied on same as their submissions in support of their respective cases.

It is interesting to note that the appellant’s counsel having become aware that he had failed to file appellant’s additional grounds of appeal and appellant’s brief of argument wherein he had argued the said additional grounds of appeal readily and admirably threw in the towel on this issue. He sought to withdraw the 2nd, 3rd, 4th and 5th issues formulated from Grounds 4, 5, 6 and 7 of the additional Grounds of appeal. He readily admitted that he did not file the additional grounds and brief of argument as ordered by the court.