Jacob Omman V. Darlington Ekpe (1999)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A.

By a Writ of Summons dated 15th June, 1992 the Plaintiff claims against the Defendant is for:

‘The sum of N121,805.00 (One Hundred and Twenty One Thousand, Eight Hundred and Five Naira) being money paid by the Plaintiff to the Defendant on or about 18th January, 1987, as deposit on account of immediate supply/delivery to the Plaintiff by the Defendant, 13 bales of Nigerian Wax texture of Clothes manufactured by Wichestex and sold to the Plaintiff at the rate of N10,000.00 (Ten Thousand Naira only) per bale, which bales of cloth the Defendant failed to supply to the Plaintiff despite repeated demands.

2. N263,000.00 (Two Hundred and Sixty Three Thousand Naira) being special damages for losts of profits occasioned by failure of the Defendant to execute the said contract or refund the said Sum of N121,805.00 One Hundred and Twenty One Thousand, Eight Hundred and Five Naira).

Particulars of Loss of Profits

From 18th January, 1987 to 15th June, 1992 (1,974 days) or (263 weeks) Minimum profit generated on investment of N 121,805 on bales of Nigerian Wax texture of cloth as aforesaid since 18th January, 1987 to date -N1,000 Per Week

263 weeks – N263,000,00

3. Interest on the sum of N121,805.00 (One Hundred and Twenty One Thousand, Eight Hundred and Five Naira) at the low commercial rate of 18% per annum from 18th January, 1987 to the date of Judgment and thereafter at same rate till the date full and final payment by the Defendant.
4. N100,000.00 (One Hundred Thousand Naira) being general damages for breach of contract as aforesaid.”

Pleadings were ordered filed and delivered. On the 13/1/93 the date the case was adjourned for hearing the defendant and his counsel were absent and from the records no reasons were given for their absence and the trial commenced. The Plaintiff witnesses testified and thereafter counsel for the Plaintiff appellant addressed the court and judgment was reserved on the same date. On 18th February, 1993 a new counsel who had now supplanted the former counsel for the defence informed the court that he was taking over the case of the defence and, he moved his motion to present the defendant/respondents case notwithstanding that “judgment had been reserved.” The court in a subsequent adjourned date granted his prayers stating thus:

“It is ordered that the case to be re-opened to the extent that the defendant shall present his defence. I refuse to recall Plaintiffs’ witnesses for cross-examination.”

The Defendant opened his case with testimony of four witnesses. Thereafter both counsel addressed the court at different dates. The main case of the Plaintiff appellant is that he had a contract with the Respondent to supply him with wax materials at the rate of N10,000.00 per bale. He paid him the sum of N121,805.00 for 15 bales of cloth but the Respondent failed to supply the materials or refund the money. The Defendant informed the court that by 1987 he had not known the appellant as he first met him in 1988. He denied telling the appellant that he was a distributor of wax material, or that he collected a sum of N121,805 from the Plaintiff for 15 bales of wax materials. He further emphatically denied being investigated by the Police for holding the appellant’s money. He however admitted receiving a sum of N20,000.00 from the appellant with which he paid his creditor who had seized his Range Rover vehicle. He equally denied being charged with stealing or obtaining money under false pretences pointing out that the appellant employed these gimmicks for his own pursuit. He stated that any transaction or reference to money was the one affecting the issue concerning the seizure of the Range Rover and nothing more. In his judgment the learned trial Judge held as follows after considering the facts of the case as presented to him.

“Having carefully considered the evidence and learned Counsel’s submission and having closely watched the demeanour of each witness during his testimony, I have been given the impression that the side of the matter narrated to the Court by the Defendant and his witnesses sound more credible than the simple story of an agreement to supply clothing materials for which the Defendant collected N121,805 and failed to supply same or to return the money. I believe the defence evidence which links the seizure of the Defendant’s vehicle by Inspector Nwachukwu and the Plaintiff with the Defendant’s report against Nwachukwu who was queried by Police authorities. I also believe that the Defendant was directed, detained and forced to sign the original copy of Exhibit 1 which was given to the police and not to the plaintiff. The evidence of the Defendant and DWs. 3 and 4 are alone on these matters of seizure of the Defendant’s vehicle and the making of Exhibit 1 under forced circumstances. Learned Counsel for the plaintiff was not able to shake DWs 3 and 4 in their strong evidence.”

He thereupon dismissed the claim.

Being dissatisfied with the judgment of the court below the plaintiff filed notice of appeal. There are four grounds of appeal from which he formulated 2 issues for determination and they are as follows:

“(a) Whether the lower court properly appraised and evaluated all the evidence proffered in this suit having regard to the quality of evidence led by both parties.

(b) Whether the lower court was right when it failed to enter judgment in favour of the appellant for the liquidated sum claimed by the appellant in the court below which sum would include the sum of N20,000.00 admitted by the Respondent plus an appropriate award of damages under the reliefs claimed by the appellant.”