Ezenwa Brothers Nigeria Limited V. Ona-jones Nigeria Limited (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Anambra State sitting at Onitsha, delivered on 29th June, 2006 by Hon. Justice J.I. Nweze in suit number 0/573/2005.

The facts of the case are as follows: The respondent took its Mercedes Benz 911 Tipper lorry for repairs to a mechanic named Emeka Agbawo. In the course of effecting the repairs, the said mechanic, Emeka Agbawo, sent the crankshaft of the Tipper lorry to the defendant now appellant who is an expert in regrinding crankshafts. The crankshaft was sent to the defendant through a brother of the mechanic named Paul Agbawo (PW1), though the job order and the receipt (Exhibit 1 and 2) were issued in the name of Emeka Agbawo (PW2).

The defendant was to regrind the crankshaft to an agreed gauge of 0.20 which is 0-50mm. After working on the crankshaft, it was returned to Emeka Agbawo the mechanic. On receiving the crankshaft, the mechanic mounted it in the engine block for testing and discovered that it was not properly done, hence it was sent back to the defendant. The defendant on its part insisted that the grinding was properly done but the fault was that of the engine block.

A new engine block was purchased and when the crankshaft was fixed the problem persisted. Hence a new crankshaft had to be purchased for the repairs of the tipper. As a consequence of the foregoing, the respondent as plaintiff instituted the suit culminating in this appeal against the defendant now appellant on 14th November 2005. The plaintiff in the court below claimed against the defendant the sum of N548,250.00 as special damages for breach of contract and negligence, and two million Naira general damages. At the close of pleadings, the matter proceeded to hearing. The plaintiff called four witnesses and the defendant called two witnesses. Several documentary exhibits were tendered in evidence. Upon the conclusion of hearing and adoption of written addresses, judgment was given in favour of the plaintiff, part of which reads thus:

“In the final analysis the plaintiffs claim succeeds. Judgment is entered in favour of the plaintiff in the sum of N202,250 being damages for breach of contract and negligence. There shall be cost of N20.000 in favour of the plaintiff.”

See page 119 of the record of proceedings.

Aggrieved by the aforementioned decision, the defendant challenged same vide a notice of appeal dated 18th July, 2006. The notice of appeal is predicated upon four grounds of appeal. See pages 120 to 122 of the record of proceedings. The respondent on its part, pursuant to an order for extension of time granted on 18th March, 2008 filed a notice of cross-appeal dated 27th March, 2008 and anchored on two grounds of appeal. In line with the Rules of Court, briefs of argument were filed and exchanged. The appellant’s brief of argument is dated 15th June, 2007 and filed on 22nd November, 2007 pursuant to an order of court granted that same day. The Appellant’s Reply brief is dated 23rd March, 2009 and filed on 24th March, 2009.

The Appellant’s Cross/Respondent’s brief is dated 23rd March, 2009 and filed on 24th March, 2009. The Respondent’s brief of argument is dated 18th November, 2008 and filed on 24th November, 2008 pursuant to an order of court made on 17th November, 2008. The Cross-Appellant’s brief of argument dated 17th November, 2008 was filed on 24th November, 2008 pursuant to the same order of 17th November, 2008. The Cross-Appellant’s Reply brief is dated 7th April, 2009 and filed on 8th April, 2009.

Mrs. F.A. Ogbuli for the Appellant/Cross Respondent adopted the Appellant’s brief, the Reply brief and the Cross-Respondent’s brief and relied on all the briefs in urging the court to allow the appeal and dismiss the cross appeal. Mr. A.C. Anaenugwu leading Okey Abazu Esq., and J.C. Udechukwu Esq. for the Respondent/Cross Appellant, adopted and relied on the Respondent’s brief, the Cross-Appellant’s brief and Cross-Appellant’s Reply brief in urging the court to dismiss the main appeal and allow the cross appeal.

The main appeal will be taken first and thereafter the cross appeal will be considered. The appellant distilled three issues for determination on pages 3 and 4 of the appellant’s brief of argument. The said issues are hereby reproduced thus:

“1. Whether the plaintiff is a party to the whole transaction between Paul Agbawo and the Defendant whereof a contract could be inferred between the plaintiff and the defendant. This takes care of ground 1 of the notice and grounds of appeal.

2. Whether the plaintiff in view of the evidence before the court was entitled to the huge amount he got in the relief he claimed, in the face of the “Condition For Acceptance” which the first P.W.1. Paul Agbawo entered into in the transaction between him and the defendant. This takes care of ground 4 of the appeal.
3. Whether the learned trial judge properly evaluated the evidence before him before arriving at the judgment he gave in this case. This took care of grounds 2, and 3 of the notice and grounds of appeal.”

The Respondent identified three issues for determination on page 2 of the Respondent’s brief of argument, as follows:

“(i). Whether having regard to the evidence before it, the finding of the trial court that there was a contract between the respondent and the appellant was right.