Beta Glass Plc. V. Epaco Holdings Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI F. OMOLEYE, J.C.A. (The Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Delta State holden at Warri, delivered by T.C. Makwe J. on 30th April, 2007.

The brief background facts of this matter are that, the parties allegedly entered into an agreement for the procurement of beer mug mould for the manufacture of beer mugs. The Respondent was entitled to twenty-five per cent of the six million mugs that were to be produced and paid that same percentage of the cost of the mould. Initially, the Respondent was also to pay the sum of Nine Naira (N9.00) which was later reviewed to Eighteen Naira (N18.00) per mug. The Appellant allegedly failed to supply the total number of mugs due to the Respondent. Hence, the Respondent instituted an action against the Appellant at the lower Court for breach of contract and claimed the sum of Four Hundred Million Naira (N400,000,000.00) for loss of profit, general damages and loss of goodwill. Pleadings were exchanged by the parties. The Respondent’s Further Amended Statement of Claim and the Appellant’s Amended Statement of Defence are contained in pages 23 to 27 and 93 to 99 of the record of appeal respectively. The case went to trial and several exhibits were tendered in evidence in support of the positions of the parties respectively. At the end of trial the lower Court in its judgment held that there was a contract for the purchase of the special mould for the production of One million five hundred (1,500,000.00) units of beer mugs for the Respondent which was breached by the Appellant and consequently the Respondent is entitled to damages. The sums of Fifty million eight hundred and eighty nine thousand five hundred and sixty Naira (N50,889,560.00) and Ten million (N10,000,000.00) were awarded to the Respondent as special damages, that is, loss of profit and general damages respectively.

The Appellant dissatisfied with the said judgment appealed against it to this Court vide its notice of appeal which was filed on 11th May, 2007. By the order of this court, the said notice of appeal was amended. The amended notice and grounds of appeal contains three grounds of appeal. The three grounds of appeal with their particulars read thus:

GROUND 1

The learned trial Judge misdirected himself in law when he proceeded to award to the defendant the judgment sum of N60,889,560 (Sixty million, eight Hundred and eighty nine thousand , five hundred and sixty Naira) as damages.

PARTICULARS

1. There were no credible and legally admissible evidence before the Court to justify the award of damages of N60,889,560 (Sixty million, eight hundred and eighty nine thousand, five hundred and sixty Naira) to the plaintiff.
2. The judgment sum awarded to the plaintiff was unreasonable as items of special damages were not sufficiently particularized and proved strictly.
3. The award of the judgment sum of N60,889,560 (Sixty million, eight hundred and eighty nine thousand, five hundred and sixty Naira) to the plaintiff on the heads:
4. Loss of profit.
5. General damages.
6. Loss of goodwill.

As per paragraph 44 of the plaintiff’s further amended statement of claim dated 6th September, 2005 amounted to double compensation.

4. The items of loss of profit and loss of goodwill as per paragraph 44 of the plaintiffs further amended statement of claim dated 6th September, 2005 were not specially proved by the plaintiff.

GROUND 2

The learned trial Judge misdirected himself in law when he proceeded to enter judgment in favour of the plaintiff in the sum of N60,889,560 (sixty million eight hundred and eighty nine thousand, five hundred and sixty naira) when plaintiff could not discharge the burden of proof as required by Section 135 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990.

PARTICULARS

1. Exhibits D & D1 did not relate to the case of the plaintiff.
2. Exhibits D & D1 relate principally to the financing of an L.P.O. (Local Purchase Order) and not the production of beer mugs.
3. Exhibit F was never a reply to Exhibit E by the defendant. Exhibit F speaks for itself, as it was a reply from the defendant to a letter dated and November 1994 from the plaintiff requesting for production of some beer mugs.
4. Plaintiff concealed the request letter from the trial Court.
5. The trial Court ought to invoke the provisions of Section 149(d) of the Evidence Act, Cap 112, Laws of the Federation, 1990 against the plaintiff.
6. Exhibit G spelt out the conditions for the continued production of beer mugs for the plaintiff by the defendant.
7. The burden of proof showing that plaintiff complied with the conditions was not discharged by the plaintiff.
8. Exhibits 1 & M are at variance with the evidence of PW1 (Plaintiff) and paragraph 22, 34 & 35 of plaintiffs further amended statement of claim dated 6th September, 2005.
9. PW1’s (Plaintiff) evidence was grossly at variance with the statement of claim.

GROUND 3

The judgment is against the weight of evidence.

In the brief of argument filed for the Appellant, three issues were formulated for the resolution of this appeal. The three issues read as follows: