Mr S.A. Ehimua V. National Oil & Chemical Marketing Co. Ltd (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C. 

The plaintiffs claims as contained in para, 19 of his Amended Statement of Claim read thus –

“19.(a) The sum of N186,483.80 being the value of sales commission of 9,324,190 litres of various types of petroleum products sold or marketed by the plaintiff for the defendant at the plaintiff’s Self built service or Filling Station otherwise called “Ekpoma Service Station” or “Ekpoma S/S” situated along Benin/Auchi Road, Ekpoma, between December, 1976 to December, 1980 at the rate of 2k per litre being rent commission for the use of the said station equipments and materials.

(b) Reasonable rent for the use of the said station, equipments and materials for the period of January, 1981 to December, 1982.

OR (c) 2k per litre as agreed commission for the use of the said Filling Station. Equipments and Materials upon sales of Petroleum Products made by the plaintiff for the period January, 1981 to December, 1982. The originals (if the sales Analysis – showing detailed particulars of the plaintiff transactions with the defendant for this period are in the possession of the defendant. The copies in the plaintiff s possession having been lost in an accident or death involving one of ‘the plaintiff s workers in the said station. The defendant is hereby given notice to produce the said originals and other particulars in their possession relevant to the said transactions.

OR ALTERNATIVELY

The sum of N292,000.00 or any part thereof being reasonable rent for the use by the defendant of the plaintiff’s said Service Station at Ekpoma for the period, December, 1976 to December, 1982

inclusive at the rate of N4,000.00 per month or any part thereof.”

After the filing and exchange of pleadings the case proceeded to trial. The plaintiff testified and called one other witness while the defendant called two witnesses. At the end of the trial the learned trial Judge in his judgment found for the plaintiff when he said on page 131 of the record thus – ,

“I therefore hold that the plaintiff has established his claim for the sum of N186,483.80 as commission. I also hold that the plaintiff has established his claim and entitlement for claim for payment of reasonable rental fees for the use of his own petrol station for the sale of the defendant’s petroleum products, from 1981 to 1982 and I assess and award to the plaintiff, as a reasonable rental fee for the use of his petrol station for the exclusive sale of the defendant’s products from 1981 to 1982 a monthly rental fee of one thousand Naira. I therefore enter judgment against the defendant in the sum of N210,483.80.”

Aggrieved by the judgment of the High Court the defendant appealed to the Court of Appeal, Benin-City, The Court of Appeal in its judgment delivered on the 11th day of July 1988 allowed the appeal set aside the judgment of the High Court and dismissed plaintiff’s claims with costs.

Dissatisfied with the judgment of the Court of Appeal the plaintiff has appealed to this Court. The parties filed and exchanged briefs of argument which were adopted and relied upon at the hearing.

Mr Akhidenor learned counsel for the plaintiff (hereinafter referred to as the appellant) submitted in his brief only one issue as arising for determination in this appeal. It reads-

“Whether the Court of Appeal was right in setting aside the whole awards of the trial court having regard to the trial court’s evaluation of the evidence in relation to the pleading.”