The Court of Appeal of Nigeria (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the Anambra State High Court delivered on 23/5/06 by Hon. Justice C.J. Okoli wherein his Lordship gave judgment in favour of the Respondents and dismissed the Appellant’s claims. The undisputed facts that led to this instant appeal are as follows:

In October 2003, the Appellant entered into an oral contract with the 1st Respondent to deliver one BMW 318 Saloon Car to the Appellant on or before the end of October 2003 at the price of N450,000 (Four Hundred and Fifty Thousand Naira). The Appellant made an initial payment of N300,000. On 8/10/2003, the 1st Respondent delivered a BMW car with a shift system to the Appellant after which the Appellant drove the car away and came back the next day to pay N50,000 and paid another N10,000 on 9/10/2003. The Appellant was then given a composite receipt for the three payments to cover the sum of N360,000 he had paid so far, leaving a balance of N90,000. The Appellant however returned the car to the 1st Respondent, alleging that the contract had been for a BMW car with an automatic gear system and not the shift

?1 gear system 1st Respondent had given to him and asked the 1st Respondent to refund his money. The 1st Respondent refused to refund the money.

The Appellant initiated an action at the trial Court by a writ of summons and a Statement of Claim dated 14/3/05 for:

“a)N650,000 (Six Hundred and Fifty Thousand Naira) damages being the present cost of vehicle the Respondents failed to deliver less N90,000.

b) 20% interest per annum on the Judgment till its final liquidation.”

The 1st Respondent counter-claimed for the balance of N90, 000 with interest and other damages.

During the trial, the composite receipt issued by 1st Respondent to the Appellant for the N360,000 received was tendered by the Appellant to show that that he had indeed paid the said amount and marked as Exh P1. After considering the pleadings and Exh P1 before the Court, the learned trial judge held that the 1st Respondent is entitled to the balance of N90,000 and interest at the rate of 5% per annum until payment and ordered that the Appellant take back possession of the car which had passed to him.

Dissatisfied with the judgment of the trial Court, the Appellant by a Notice of Appeal filed on 30/07/06

2 containing 6 grounds of appeal has brought this Appeal. Records were transmitted on 01/07/08, deemed filed on 02/10/12. Appellant’s brief was filed on 11/10/12, while Respondent’s brief was filed on 19/04/13.

In the Appellant’s brief settled by I.E Nchezor Esq, four issues were identified for determination to wit:

1. Whether in the evidence of the Appellant and the 1st Respondent, it was established that the invoice receipt issued by the 1st Respondent to the Appellant was their contractual agreement.
2. Whether issuance of receipt of payment of another company without the consent of the company can confer an acceptance of goods sold, in good condition in accordance with S. 251 (3) of Contract Law cap 32 Laws of Anambra State 1991.
3. Whether the 1st Respondent kept to the terms and specifications of the car demanded by the Appellant and if not whether the Appellant has the right to seek for damages.
4. Whether the Lower Court gave judgment against the weight of evidence.

In the Respondents’ brief settled by Dr. E Chukwuemeka Anyogu, only two issues are identified for determination as follows:

1. Whether, on the evidence adduced in the Court below, the 1st Respondent

3supplied to the Appellant the brand and specification of the BMW car agreed upon by the parties.