Augustine Abba V. Shell Petroleum Development Company Of Nigeria Limited (2013)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal against the Judgment of the Court of Appeal, Benin Division in Appeal CA/B/162/99 delivered on the 10th day of June, 2004. The simple facts of this case, summed up from the available Records of this Court are as follows: The Appellant as plaintiff, in the trial High Court of Warri, Delta State in Suit No. W99/93, had claimed against the Respondent who was the Defendant, the sum of N2, 500,000.00 (Two Million, five hundred thousand Naira) being the agreed price of American Crane Spare Parts supplied by the Appellant to the Respondent.

The case was tried on pleadings filed and exchanged by the parties in their 10 paragraph statement of claim and 15 paragraph Amended Statement of Defence respectively. From the pleadings, the germane issue in the case at the trial was whether there was a valid contract of sale of the goods delivered to the Respondent herein.

Appellant testified in the case and called no witness. Respondent rested its case on the Appellant’s evidence and called no witness of its own. At the close of oral evidence, counsel for respective party each addressed the trial court after which the learned trial judge reserved the Judgment which was delivered on 27/11/98 in favour of the Appellant.

Dissatisfied with the Judgment of the learned trial Judge, the Respondent herein by Notice of appeal filed on 21/2/99 appealed against the Judgment on five original grounds of appeal set out in the Notice of Appeal. By Leave of the Court of Appeal, Appellant filed seven additional grounds numbered 6 – 12.

At the court below briefs were filed and exchanged and the court heard the appeal and dismissed the Appellant’s Suit in its entirety. Their Lordships concluded thus:

“The Local Purchase Order Exhibit “A” issued by the appellant to the respondent is on the fact before the court, no more than an invitation to treat, not an offer to the respondent.

Even if it was an offer to him the respondent in purporting to accept same, made a counter-offer or modified the terms of the LPO. In addition he did not act in conformity with the condition and warranty stipulated in the Sale of Goods Law (supra) with particular reference to the ownership or right to sell the spare parts which he testified belonged to 3rd party who fixed the prices.

Again even if he had succeeded in proving his entitlement to any sum of money, which he did not prove, his evidence on the issue of interest was at variance with his pleading. For instance, the 45% interest per month was not pleaded and such evidence went to no issue in the case. On the other hand there was no evidence to establish the claimed rate current in commercial banks at any point in time. The respondent’s case has no merit and the court below ought to have dismissed same.”

The Appellant being dissatisfied with the Judgment of the court below sought and obtained leave of this Court on 21/12/05 to appeal against the said Judgment out of time and filed 9 (nine) grounds of appeal. The Appellant has also filed an application for leave to file and argue an additional ground of appeal dated the 17th day of May 2006.

The Appellant submits the following issues for determination.

“(a) Whether or not the Appellant was denied fair hearing in the circumstance when the Court below did not consider and/or adequately consider issues a, b, c, and d (issue e) and their arguments thereof as contained in the Appellant’s brief at the Court below. – Grounds A, B, C and E.

(b) Did the issues raised suo motu by the court below and upon which the appeal was heard and determined cover the real points in controversy between the parties in the appeal before the said Court. – Ground D.

(c) Whether from the circumstances of this case, the learned Justices were right when they held that it was the Appellant who has the burden of proving the source and genuineness of the spare parts. – Ground J (the additional ground of appeal)