Sabru Motors Nigeria Limited Vs Rajab Enterprises Nigeria Limited (2002)

LAWGLOBAL HUB Lead Judgment Report

O. OGWUEGBU, J.S.C.

The appellant was the defendant in Suit No. ADSY125/93 instituted by the respondent as plaintiff in the High Court of Adamawa State, Yola Judicial Division. The defendant was an accredited distributor of the Anambra Motor Manufacturing Company Ltd. (ANAMCO for short). The parties entered into a contract for the sale of two Mercedes Benz Trucks Model L.911/48C by the defendant to the plaintiff at a unit cost of N846,000.00. The plaintiff paid a total of N1,692,519.40 for the two vehicles with a bank draft. When the defendant failed to deliver the vehicles, the plaintiff commenced proceedings leading to this appeal. Pleadings were ordered, filed and exchanged. In paragraph 12 of its amended statement of claim the plaintiff averred as follows:

12. Whereof the plaintiff claims against the defendant:

(a) The sum of one million six hundred and ninety two thousand, five hundred and nineteen naira, forty kobo being the money originally paid to the defendant for the delivery of the two Mercedes L.911/48C Trucks and the additional sum of four million, three hundred and seven thousand naira which the plaintiff will have to add to the sum originally paid to the defendant if the plaintiff were to buy the two trucks in the open market.

(b) In the alternative to (a) above an order of this Hon. Court to compel the defendant to deliver to the plaintiff two new Mercedes Trucks L.911/48C model. An order of this Hon. Court compelling the defendant to pay interest on the sum of N1,692,519.00 at current bank rate to the plaintiff from the month of March, 1993 until judgment is delivered.”

The plaintiff’s case as disclosed in the pleadings and from the evidence is that in February 1993, it placed an order with the defendant for the purchase of two Mercedes Benz trucks Model L.911/48C at a unit price of N846,259.20 totalling N1 ,692,5 17.40 excluding 1% commission payable on delivery of the goods. The plaintiff duly paid for the two trucks and the money was remitted to ANAMCO. Subsequently, the defendant by a letter dated 31st March, 1993 (exhibit “R.S.1”) informed the plaintiff that the prices of the vehicles had been reviewed upwards to N1,500,000.00 per truck and requested the plaintiff to remit an additional sum to make up the increased price. As a matter of fact, the defendant had on 13th April, 1993 collected the two trucks from ANAMCO at the old rate as evidenced by invoice No. 9390 (exhibit “R.S.3”) and instead of delivering them to the plaintiff, the defendant sold them to a third party, Leventis, on the pre that the plaintiff did not pay the additional sum requested by the defendant. It was part of the plaintiff’s case that the money which he paid for the trucks was raised from his bankers and he was charged interest at the rate of 35% from 1993 to 1994 and 21% thereafter and that the price of the trucks had gone up to N3,000,000.00 per truck. The defendant’s case was that the price of the trucks in question as at 1st February, 1993 was N2,039,180.00 at the rate of N1,019,590 each and that the plaintiff paid N1,692,519.40 which was not up to the total cost of the trucks. It was further averred that the price list of ANAMCO (exhibit “RS4”) was subsequently reviewed upwards to N3,000,000 less 8.5% for the two trucks and that as a result, a letter dated 5th May, 1993 (exhibit “RSS”) was addressed to the plaintiff to pay an additional sum of N1,052,480.60 to cover the full costs of the two vehicles or elect to pay for one truck only and be refunded the balance of N320,019.40k of the money it had already paid. As the defendant did not hear from the plaintiff, it forwarded a draft (exhibit 7A) to the plaintiff with a letter dated 26th June, 1993.

This was in refund of the money paid by the plaintiff and that the plaintiff refused to accept the refund. The defendant admitted taking delivery of the vehicles from ANAMCO on 13th April, 1993 and sold them to other customers. At the conclusion of hearing, the learned trial Judge evaluated the evidence. He found for the plaintiff as follows:

(a) N1,692,519.40 being the price which plaintiff paid to the defendant for the two vehicles and

(b) N300,000.00 as damages. Items (a) and (b) totalled N1,992,519.40 with interest on N1,692,519.40 at 5% simple interest from 1st March, 1993 to 31st March, 1995 and interest on the total judgment debt from 20/4/95, the date of judgment with interest. He entered judgment for the plaintiff accordingly.The learned trial Judge found as a fact that the purchase price agreed by both parties was N846,259.70 and that the plaintiff paid N 1,692,519.40 representing the price of the two trucks. He also found that the defendant took delivery of the two trucks from ANAMCO on 13/4/93 and that its failure to deliver them to the plaintiff that day or the day after was wrongful.

Dealing with the alternative claim for specific performance, he referred to section 52 of the Sale of Goods Act, 1893 and held that as the trucks in question were not “specific or ascertained,” the plaintiff was not entitled to specific performance. As to the claim for damages, the learned trial Judge referred to section 51(3) of the Sale of Goods Act, 1893 and held that the plaintiff is entitled to the sum of N1,692,519.40 which it paid and that it failed to prove its actual loss at the time the defendant defaulted in delivering the vehicles. He nevertheless awarded N300,000.00 as damages. The plaintiff was not satisfied with the judgment and it appealed to the Court of Appeal, Jos Division. Its complaints were that the learned trial Judge refused to make an order of specific performance and also the inadequacy of damages awarded. The court below dismissed the appeal on specific performance and allowed that on damages holding that the learned trial judge ought to have awarded the plaintiff the sum of N1,307,480.60 being the difference between the contract price of the two trucks (N1,692.519.40) and their market or current price of N3,000,000.00 as at 13/4/93 when the defendant defaulted in delivering them to the plaintiff. Dissatisfied with the judgment of the court below, the defendant appealed to this court. It filed three grounds of appeal and obtained the leave of this court to file and argue grounds of fact and mixed law and fact. The only issue formulated by the defendant from the three grounds of appeal as arising for determination is whether the court below was right after finding the plaintiff’s evidence on damages inconsistent and/or contradictory, to have reviewed the same damages of N1,992,519.40 awarded by the trial court to N3,000,000.00 by placing reliance on the pleadings of the parties. The learned counsel for the defendant in his brief of argument submitted that for a party to obtain relief on special damages, such relief must specifically be pleaded and proved. He referred the court to paragraphs 6 and 11 of the amended statement of claim filed by the plaintiff and argued that the defendant specifically denied them in its statement of defence. He specifically mentioned paragraph 10 of the statement of defence and that on a complete reading of the statement of defence, it cannot be said that the defendant admitted that the plaintiff is entitled to the damages claimed. It was further submitted that in paragraph 11 of the amended statement of claim the plaintiff claimed six million naira as current price of 2 Mercedes Trucks due for delivery to it, that this paragraph was clearly denied in paragraphs 3 and 15 of the statement of defence and that the denial put the plaintiff to strict proof of the damages claimed. The court was also referred to section 51(3) of the Sale of Goods Act, 1893. It was also submitted that the plaintiff did not plead the price of the trucks at the time of the refusal to deliver. It was contended that even if the pleadings were held to avail the plaintiff, it was wrong for the court below to have reviewed the damages awarded for the sole reason that there was an admission on the pleadings and that the court was also in error to have considered paragraph 10 of the statement of defence in isolation and without regard to paragraphs 2 and 15 thereof. The case of Titiloye v. Olupo (1991) 7 NWLR (Pt.205) 519, (1991) 9-10 SCNJ 122 at 124 and 125 was cited in support of counsel’s contention. It was further contended that the plaintiff called two witnesses in proof of damages and that the court below rightly found their evidence to be “conflicting”, “contradictory” and “contrary to pleadings”, that P.W.1 and P.W.2 gave inconsistent evidence of the current price of the trucks and that the same court should not have proceeded to find an admission in exhibit “RSI” which was tendered through the plaintiff and which exhibit gave the price as N1,500,000.00 per vehicle, an amount which the same court found to be in conflict with the evidence. It was finally submitted that the case of the plaintiff at the trial by its amended statement of claim was for N6,000,000.00 as cost of the trucks at the time of trial, that it is trite that a party is not permitted to change his case on appeal faced with the consequences of inconsistent, unreliable and contradictory evidence it called and to change its entire case relying on an admission which was never its case. We were referred to the case of Imana v. Robinson (1979) NSSC I at II on what strict proof entails. The court was urged to hold that given the findings of the court below on the evidence led by the plaintiff and the position held by the defendant in its pleadings, the Court below was in error to have increased the damages awarded by the trial court and that the appeal should be allowed.

The learned counsel for the plaintiff adopted the sole issue identified by the defendant in its brief. It was his contention that counsel for the defendant in the brief laid unnecessary emphasis on the observation of the court below with regards to the evidence of the plaintiff’s witnesses on the exact amount of damages the plaintiff was entitled and overlooked the reasons given by that said court in arriving at its decision to interfere with the award made by the trial court. He referred the court to paragraph 12(a) of the amended statement of claim containing the substance of the plaintiff’s claim in relation to damages and that it was the purchase price of the two vehicles which it had earlier paid to the defendant plus the amount it was entitled to if it were to purchase them in open market at the time the defendant defaulted in delivering them. It was further submitted that the trial Judge having found that the plaintiff paid the defendant the full purchase price of the two vehicles, he failed to deliver and was therefore in breach of the contract that the only issue left to be decided by him was the amount of damages which the plaintiff was entitled and that the answer is provided in section 51(3) of the Sale of Goods Act, 1893. It was also argued that proof of price of the two vehicles at the time the vehicles ought to have been delivered became a question of law based on proved or admitted facts. It was pointed out in the plaintiff’s brief that special damages were mentioned in paragraph 1 of its amended statement of claim and that the actual and material relief claimed by the plaintiff against the defendant is contained in paragraph 12(a) which superceded the averment in paragraph 11.

It was further submitted that paragraph 10 of the statement of defence read together with exhibit “RS 1” (a letter written to the plaintiff by the defendant showing that the price of each vehicle had risen to one million, five hundred naira) supplied the evidence and provided the basis for calculating the actual sum due to the plaintiff within the provisions of section 51(3) of the Sale of Goods Act and that this was the error which the court below corrected when it awarded the sum of N1,307,480.60 which the plaintiff needed to make up the N3,000,000.00 to purchase the two vehicles in open market at the date of expected delivery. The court was urged to dismiss the appeal and to hold that the court below had done substantial justice without relying on the niceties and technicalities which would have had the effect of defeating justice. The issue canvassed in this appeal concerns the adequacy of damages awarded to the plaintiff by the learned trial Judge which was reviewed upwards by the court below when the plaintiff’s evidence in proof of its claim for damages is said to be inconsistent with its pleadings. Reliance was placed by both parties on various paragraphs of their pleadings as well as section 51(3) of the Sale of Goods Act, 1893, an English Statute which is of general application. The courts below also considered the pleadings as well as section 51(3) of the Act in relation to the plaintiff’s claim for damages for non-delivery. Section 51 of the Sale of Goods Act provides:

“51(1) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery.

(2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the seller’s breach of contract.

(3) Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.” I will now consider paragraphs 6, 11 and 12(a) of the amended statement of claim and paragraphs 3, 10 and 15 of the statement of defence.