Dr. Akpo Mudiaga-odje V. Younes Power System Nigeria Ltd. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment)

This appeal instituted by the Appellant is against the Ruling of Honourable Justice R.N. Pemu (Mrs.) of the High Court of Delta State, Warri Judicial Division delivered on 3rd April 2009.

By the said Ruling the learned trial Judge upheld the Respondent’s notice of preliminary objection dated 18th February 2009 thereby declining the jurisdiction of Delta State High Court in hearing and determining the Suit No. W/333/08 instituted by the Appellant against the Respondent at the High Court of Delta State, Warri Judicial Division.

The summary of the facts are as follows:-

The Appellant as Plaintiff in the trial court commenced this action vide Writ of Summons and Statement of Claim filed at the High Court of Justice, Warri, on 24/11/2008, wherein he claimed thus:

1. A declaration that considering the circumstances and the facts averred to in several paragraphs above, especially paragraphs 9, 10, 11, 14, 15, 17, 21 and 22 leading to the breakdown of the said generating set on 20/10/2008, same was not fit for its purpose, having had a manufacturer’s defect in its water pump and radiator.
2. A declaration that the defendant flagrantly breached its warranty, assurances and undertaking as to the fitness of the generating set, thereby misleading the Plaintiff to purchase same to the tune of N1, 950,000.00 (one Million, Nine Hundred and Fifty Thousand Naira), plus VAT.
3. An order directing the Defendant to forthwith refund the sum of N1,950,000.00 (One Million, Nine Hundred and Fifty Thousand Naira), same being the purchase price plus VAT received from the Plaintiff by the Defendant for the purchase of its manufacturer’s defective generating set bought by the Plaintiff on 26/3/2008.
4. An order directing the Defendant to pay over to the Plaintiff the sum of N500,000.00 (Five Hundred Thousand Naira) only being special damages relating to the money expended on the generating set and/or incidental matters relating thereto as particularized below:

PARTICULARS OF SPECIAL DAMAGES

(1) Cost of Transporting the manufacturer’s defective Generating set from Lagos to Warri – N100,000.00

(2) First Water Pump – N50,000.00

Labour Charges paid to Mr. Emeka from Lagos – N15, 000.00

(3) Second Water Pump – N40,000.00

Labour Charles (sic) paid to Mr. Emeka from Lagos – N20,000.00

(4) Top Cylinder Gasket – N22,500.00

(5) 2(two) pieces of connecting rods – N24,000.00

(6) 2(two) pieces of pistons and rigs – N76, 000.00