Paul Okoye & Anor. V. Bartholomew Okonkwo & Anor. (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SULEIMAN GALADIMA, J.C.A. (Delivering the Leading Judgment)

The “Appellants” who were the defendants have appealed against the judgment of the High Court of Onitsha Judicial Division of Anambra State presided over by Hon. Justice K.K. Keazor delivered on 3/4/2000, entering judgment in favour of the plaintiffs hereinafter referred to “the Respondents”

In their amended Statement of Claim, the respondents as plaintiffs claimed against the defendants jointly and severally as follows:

“The return of 300 bundles of ‘Swan” roofing sheets delivered to them in Lagos for delivery at the defendants’ office in Onitsha OR IN THE ALTERNATIVE

(b) The sum of N1.5 million being the value and loss of profit on hundred bundles of “SWAN” roofing sheets at N5,000.00 per bundle.

(c) The sum of N1,500 being refund of deposit paid to the 2nd Defendant.”

In reply the defendants filed a Statement of Defence, which the defendants amended, denying the claims of the plaintiffs as they are not tenable in law. The matter proceeded on trial. 1st Respondent testified as PW1. Defence also called two witnesses. At the end of the trial learned trial Judge entered judgment against the defendants jointly and severally and held them liable to pay the plaintiffs the sum ofNI.5 million being the value and loss of profit on 300 bundles of “SWAN” roofing sheets, or in the alternative return to the plaintiffs 300 bundles of “Swan brand of roofing sheets.

Being dissatisfied with the said decision the defendants filed a Notice of Appeal, which contains EIGHT Grounds of Appeal. All the parties thereafter filed their briefs of argument. The Appellants’ brief deemed filed on 12/2/2005, distilled FIVE issues from the grounds of appeal for the determination. The issues are in the following terms:

1. “WHETHER THE COURT WAS RIGHT TO HAVE AWARDED THE SUM OF N1.5 MILLION WHEN ON THE EVIDENCE ADDUCED THE RESPONDENTS DID NOT DISCHARGE THE ONUS OF PROOF.
2. WHETHER THE TRIAL COURT WAS RIGHT IN FINDING THE APPELLANTS NEGLIGENT.

3 WHETHER THE TRIAL COURT WAS RIGHT IN REFUSING THE PLEA OF FRUSTRATION AS PLEADED AND PROVED BY THE APPELLANTS.

4. WHETHER THE TRIAL COURT HAD TERRITORIAL JURISDICTION.
5. WHETHER THERE WAS PRIVITY OF CONTRACT BETWEEN THE PLAINTIFFS AND 2ND DEFENDANT.”

The FIVE issues submitted on behalf of the Respondents by their counsel arising for determination in the brief of argument are as follows.

“ISSUE NO.1

Whether the trial judge was not right in holding on the pleading and on the evidence adduced at the trial, and by the Interpretation of Order 4 Rule 3 of the Anambra State high Court Civil procedure Rules 1998, that he had jurisdiction to hear and determine the case at the high Court of justice Onitsha.

ISSUE NO.2

Whether the award of N1.2 Million representing the value of the respondents’ goods, and loss of profit thereof was not rightly made.