EASTCHASE ALUMINIUM PRODUCTS LIMITED v. MR. CHARLES UGWU & ANOR
(2016)LCN/8576(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of May, 2016
CA/E/154/2011
RATIO
APPEAL: ATTITUDE OF COURT TOWARDS PROLIFERATION OF ISSUES OF DETERMINATION
Again, this Court has repeatedly frowned at the attitude of parties formulating issues for determination that are more than the grounds of appeal. Issues for determination are mandatorily required to be equal or less than the grounds of appeal, but definitely, not more than the grounds of appeal. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
BUSINESS LAW: POSITION OF THE LAW ON SALE OF GOODS BY DESCRIPTION
The transaction that formed the subject matter of this case is mainly regulated by the provisions of Sale of Goods Act, 1893 (hereinafter referred to as the Act) Section 13 of the Act provides as follows:
“Where there is a contract for the sale of goods by description there is an implied condition that the goods shall correspond with the description; and if the sale by sample, as well as by description, it is not sufficient that bulk of the goods corresponds with the sample if the goods do not also correspond with the description”
Also Section 14(2) of the Act, which equally applies to this case stipulate as follows:
“Where goods are bought by description from a seller who deals in good of that description (whether he be the manufacturer or not) there is an implied condition that the goods shall be of merchantable quality; provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination ought to have revealed.”
Where a buyer clearly specifies the descriptions of the goods he wants to buy, the seller is under the obligation to supply the goods with exact descriptions or simply inform the buyer that he does not have goods of that descriptions. Hence, where he has stated or gave the buyer the impression that he has the exact descriptions of the goods required in his stocks, he would be required under the law and or contract to supply the buyer with the exact descriptions of the goods requested for, default in respect of which the buyer is entitled to reject the goods and repudiate the contract or accept them and sue for damages. See Section 11 of the Act. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
CONTRACT: POSITION OF LAW ON THE BREACH OF TERMS OF CONTRACT
Thus, it is my firm view point that the learned trial judge was right when he held that the appellant breached its contract with the respondents and consequently, that they are entitled to reject the goods, request for the purchase price and claim damages for breach of contract. This position has been severally pronounced upon by various Courts. In the case of Re Moore and Co. Ltd. v. Laudarer and Co. (1921) 2 K. B. 519. Wherein a buyer requested for 3,000 tins of Australian canned fruits in cases, each case to contain 30 tins. On delivery, the purchaser discovered that although the total quantity of tins had been delivered, about half of the cases contained only 24 tins. It was held that this was a breach of Section 13, and the purchaser was entitled to reject the whole consignment, even though he suffered no actual damage from the breach, for the goods delivered, differed in essential particulars from those described and ordered. See also the case of Adel Boshali vs. Allied Commercial Exporters Ltd. (1961) All NLR 917. It has been held that even if the seller’s deviation from specification is not substantial, the buyer is still entitled to reject the goods, if he is so inclined. This position was upheld in the case ofArcos Ltd. v. Ronaasen and Son (1933) A.C. 470 @ 479, wherein the House of Lords, per Lord Atkin, stated as follows:
“If the written contract specified conditions of weight measurement and the like, those conditions must be complied with. A ton does not mean about a ton or a yard about a yard.”
The above position was equally followed in the case of Nichol v. Godts (1954) 10 Ex. 191. It has equally been held, in the English case of Ashington Piggeries Ltd. v. Christopher Hill Ltd. (1971) 1 All E. R. 47, that the Seller would still be liable to the buyer for failure to meet the description even though it can be established that he does not deal on the specific kind of goods requested, provided he deals on the goods of that general nature. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
TORT: CONTRIBUTORY NEGLIGENCE: CHARACTERISTICS OF THE PRINCIPLE OF CONTRIBUTORY NEGLIGENCE
Basically, the essential characteristic with regard to the principles of contributory negligence, is to the effect that the party charged must be primarily liable for the negligence if any, that gave rise and caused the damage or injury. The principle of contributory negligence is founded upon the application of common sense to the simple facts of life. These are facts which reveal the action or inaction of a person who although was not primarily responsible for an accident or the cause of an injury, had by his own conduct created a situation which favoured the cause of the accident and or resulted in the injury which had occurred; be it in the form of damages or otherwise.
Thus, contributory negligence as a defence to a claim is essentially predicated on negligence. It applies to cases where a plaintiff has, through his own negligence, contributed to cause, the damages he incurred as a result of defendant’s negligence. Indeed, a plea of contributory negligence is tantamount to a tacit admission of the defendant’s primary responsibility for the complaint of negligence and thereby relieves the plaintiff of the burden of proving negligence. See S.C.C. (Nig.) Ltd. & Ors. vs. Mrs. Igueriniovo (2004) All FWLR (Pt.189) 1133 @ 1148-1149. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
Before Their Lordships
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria
Between
EASTCHASE ALUMINIUM PRODUCTS LIMITEDAppellant(s)
AND
1. MR CHARLES UGWU
(doing business under the name and style of Ibeson aluminum products Nig.)
2. VINCENT ANIRespondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.(Delivering the Leading Judgment): This is an appear against the judgment of Hon. Jusctice K. N. Udeh, J. of the Enugu state High Court, sitting at Enugu (hereinafter referred to as the Lower Court). The said judgment was delivered on the 23rd day of November, 2010.
The respondents/plaintiffs at the said Lower Court took out a writ of summons against the defendant/appellant on the 23rd day of June, 2004 and contemporaneously filed their statement of claim and therein sought for the following reliefs:
?N2,000.000.00 (Two Million Naira only) being and representing the amount paid by plaintiffs’ to the defendant for the supply of Aluminum products of a specified quality and which quality the product supplied by defendant did not meet, leading to a rejection of the product by the final consumer and cancellation of a roofing contract involving plaintiffs, AND ALSO DAMAGES for the said act of the defendant on the plaintiffs.
AN ORDER that defendant evacuates at its own expenses immediately, the products supplied the plaintiffs which were not used owing to the default of the defendant. ”
At the close of
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pleadings and with issues having been joined, the matter was duly heard. Thereafter, learned counsel for both parties filed their respective written addresses. At the end of it all, the learned trial judge entered judgment in favour of the respondents in the following words:
“In the final analysis, I hold the view that the plaintiffs have proved their case against the defendant on a balance of probabilities and is entitled to judgment. Judgment is hereby entered in favour of the plaintiffs against the defendant as per their claim. The following orders are hereby made:
“1. N2,000,000.00 (Two Million Naira Only) is awarded the plaintiffs being and representing the amount paid by the plaintiffs to the defendant for the supply of aluminum products of a specified quality and which quality the product supplied by the defendant did not meet leading to a rejection of the product by the final consumer and cancellation of a roofing contract involving the plaintiffs, AND ALSO DAMAGES for the said act of the defendant on the plaintiffs
2. The defendant is hereby ORDERED to evacuate at its own expenses immediately, the said products supplied the plaintiffs,
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which were not used owing to the default of the defendant.
Costs assessed and fixed at N50,000.00 is awarded against the defendant in favour of the plaintiffs – out of pocket expenses inclusive.?
The appellant being dissatisfied with the judgment, appealed against it, vide a notice of appeal filed on the 2nd day of December, 2010. The two grounds of appeal contained therein without their particulars are reproduced below:
“GROUND ONE – MISDIRECTION
The learned trial judge misdirected himself when he held that failure of the Respondents to return the goods to the Appellant did not amount to acceptance because the Respondent had given uncontradicted testimony that the defendant warned him not to return the rejected product to the company.”
“GROUND TWO – MISDIRECTION
‘The trial Court misdirected itself when it held that the Respondents relied on the professional competence of the Appellant.”
In accordance with the rules of this Court, learned counsel for the parties filed their respective briefs of argument. The appellant’s brief was prepared by Ikeazor Akaraiwe, Esq. It was filed on the 12th day of July, 2012 but deemed
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as having been properly filed and duly served on the 23rd day of October, 2013. The respondents’ brief was prepared by Mrs. A. N. l. Nnadozie. It was filed on the 6th day of November, 2013.
The learned appellant’s counsel distilled two (2) issues for the determination of this appeal. The issues are reproduced below:
?ISSUE 1:
Assuming but not conceding that the Respondents relied on the skill and competence of the Appellant, whether the Respondents, both aluminum dealers with about 20 years experience between them in aluminum products were not contributorily negligent as purchasers by relying on the Appellant/Seller?s skill and professional competence in determining the quality of the aluminum products purchased; and as a corollary, whether the appellant is not thereby freed from liability.
ISSUE 2:
Whether the failure of the Respondents to return the disputed goods to the Respondent (appellant) did not amount to acceptance of the goods irrespective of the threat allegedly issued the Respondents by the Appellant to not return the goods;?
?The learned counsel for the respondents distilled four issues for
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determination of this appeal. I do not intend to reproduce the said issues as formulated. The issues are alien to what should be regarded as issues for determination in an appeal. What is more, the respondents’ brief of argument was also structured in an inelegant manner, It is imperative that learned counsel for the parties should endeavour at all times, to prepare processes that will be filed on behalf of their clients with due diligence and industry. It must be done in a manner that will be beneficial, advance, enhance the cases of their clients and also be of immense assistance to the appellate Court. In the instant case and in the overwhelming interest of justice, I am constrained to make the best possible use of the respondents’ brief of argument as filed even though the said brief of argument, left so much to be desired.
?Again, this Court has repeatedly frowned at the attitude of parties formulating issues for determination that are more than the grounds of appeal. Issues for determination are mandatorily required to be equal or less than the grounds of appeal, but definitely, not more than the grounds of appeal. In the instant, it was the
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respondents’ counsel that formulated prolix issues. This Court has consistently and persistently discouraged this practice, as it amounts to the respondent crying louder and more than the bereaved. In determining this appeal, the two issues distilled for determination in the appellant’s brief of argument shall be adopted. Also, in my consideration thereon, both issues will be taken together
It is the contention of the learned counsel to the appellant that the respondents were also professionals in the aluminum business, by virtue of their long dealings with the products, which spanned a combined period of twenty years. As such, they are equally in a good position as the appellant to properly determine the quality of the products requested and or ordered by them. Thus, they should be held as equally liable as the appellant. The learned counsel argued further that: “It was reasonably foreseeable or ought to have been reasonably foreseeable that a buyer should not rely on the professional skill and competence of a seller whose target was to dispose of his goods. Respondents, if they were not experts should have procured the services of on expert, a third
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party to confirm the appellants assertion of the value of his products. Having failed to do so, the respondents are not entitled to the damages awarded them.”
The learned appellant’s counsel also contended that the failure of the respondents to return the goods amounted to acceptance in law. He argued in this vein, that the respondents having been dissatisfied with the goods; have the obligation to return them, and that the alleged threat from the appellant for them not to return the goods is untenable. He strongly maintained that threats are matters of criminal nature, and in respect of which the respondents should have reported to the police or take a police escort to return the goods to the appellant. Thus, learned counsel submitted that the learned trial judge was wrong (with due respect) to have disbelieved the appellant?s witness testimony that he was never asked to retrieve the goods from the respondents and that they were threatened not to return the goods, without any concrete proof in respect thereof. He referred to Sections 131(1) and 132 of the Evidence Act, 2011. He thereby urged this Court to set aside the judgment of the Lower Court;
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or in the alternative to substitute it with a judgment that will find the respondents to have been contributorily negligent and therefore liable to forfeit the damages of N2M (Two Million Naira) ordered/awarded against the appellant; in addition to an order mandating the respondents for evacuation of the belatedly rejected aluminum roofing sheets.
The learned counsel for the respondents in her response, submitted that the nature of the transaction between the parties involved the sale and purchase of goods by descriptions. She referred to Section 14 of the Sale of Goods Act. It was argued that, the respondents clearly and expressly conveyed to the appellant, the quality of material needed by their client and that the appellant agreed to supply the same, but subsequently delivered something else. It was thus submitted, that the failure of the appellant to supply the right description of the goods the respondents requested for, entitled them to reject the goods and treat the contract as having been repudiated. He referred us to the cases of: Beale v. Tayor (1967) WLR 1193; Olajide Odumba Stares and Sawmills Ltd. vs. Omolayo Agencies (Nig.) Ltd. CCLTC2/4/78,
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625 among others.
The learned counsel argued that the respondents are merely in the general business of construction that involved the use of aluminum and as such, they could not be regarded as experts in the manner the appellant sought to establish. She further argued that in any event, that the respondents cannot be held to be negligent for failing to exercise reasonable care, because the appellant admitted at the Lower Court that only “calliper” can be used to measure the thickness of the roofing materials and that the respondents does not have it. Thus, the respondents, rightly relied on the competence of the appellant. Furthermore, the learned counsel submitted that the Lower Court was right to have concluded that the appellant knew that the goods they supplied did not meet the description specified and required by the respondents; by their failure to “re – test” the goods to assure the respondents of the quality of the goods after doubt was raised with regard to the quality of the goods. The learned counsel also submitted, that the fact that the goods were finally supplied by Chartered Aluminum Company that conducted the test is of little moment
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because, had the defendant (appellant) joined issues with Chartered Aluminum, the situation would have been otherwise. She thereby urged this Court to uphold the judgment of the Lower Court.
The transaction that formed the subject matter of this case is mainly regulated by the provisions of Sale of Goods Act, 1893 (hereinafter referred to as the Act) Section 13 of the Act provides as follows:
“Where there is a contract for the sale of goods by description there is an implied condition that the goods shall correspond with the description; and if the sale by sample, as well as by description, it is not sufficient that bulk of the goods corresponds with the sample if the goods do not also correspond with the description”
Also Section 14(2) of the Act, which equally applies to this case stipulate as follows:
“Where goods are bought by description from a seller who deals in good of that description (whether he be the manufacturer or not) there is an implied condition that the goods shall be of merchantable quality; provided that if the buyer has examined the goods there shall be no implied condition as regards defects which such examination
10
ought to have revealed.”
Where a buyer clearly specifies the descriptions of the goods he wants to buy, the seller is under the obligation to supply the goods with exact descriptions or simply inform the buyer that he does not have goods of that descriptions. Hence, where he has stated or gave the buyer the impression that he has the exact descriptions of the goods required in his stocks, he would be required under the law and or contract to supply the buyer with the exact descriptions of the goods requested for, default in respect of which the buyer is entitled to reject the goods and repudiate the contract or accept them and sue for damages. See Section 11 of the Act.
?In the instant case, the respondents expressly requested for 0.55mm gauge foreign oven baked terra cotta red roofing sheets. See Exhibit C. It is also in evidence on the record of appeal placed before us, that the Lower Court found based on the evidence adduced before the lower, that the goods did not correspond with the said descriptions. See page 97 of the record of appeal. The learned trial judge puts it thus and I quote:
“I therefore hold, based on the evidence before me that
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the aluminum products supplied to the plaintiffs by the defendant were not of the specification of 0.55mm agreed upon by the parties as evidenced by Exhs. A, B and C.”
Thus, it is my firm view point that the learned trial judge was right when he held that the appellant breached its contract with the respondents and consequently, that they are entitled to reject the goods, request for the purchase price and claim damages for breach of contract. This position has been severally pronounced upon by various Courts. In the case of Re Moore and Co. Ltd. v. Laudarer and Co. (1921) 2 K. B. 519. Wherein a buyer requested for 3,000 tins of Australian canned fruits in cases, each case to contain 30 tins. On delivery, the purchaser discovered that although the total quantity of tins had been delivered, about half of the cases contained only 24 tins. It was held that this was a breach of Section 13, and the purchaser was entitled to reject the whole consignment, even though he suffered no actual damage from the breach, for the goods delivered, differed in essential particulars from those described and ordered. See also the case of Adel Boshali vs. Allied Commercial
12
Exporters Ltd. (1961) All NLR 917. It has been held that even if the seller’s deviation from specification is not substantial, the buyer is still entitled to reject the goods, if he is so inclined. This position was upheld in the case ofArcos Ltd. v. Ronaasen and Son (1933) A.C. 470 @ 479, wherein the House of Lords, per Lord Atkin, stated as follows:
?If the written contract specified conditions of weight measurement and the like, those conditions must be complied with. A ton does not mean about a ton or a yard about a yard.”
The above position was equally followed in the case of Nichol v. Godts (1954) 10 Ex. 191. It has equally been held, in the English case of Ashington Piggeries Ltd. v. Christopher Hill Ltd. (1971) 1 All E. R. 47, that the Seller would still be liable to the buyer for failure to meet the description even though it can be established that he does not deal on the specific kind of goods requested, provided he deals on the goods of that general nature.
?Learned counsel for the appellant argued, ingeniously and strenuously that the respondents were contributorily negligent as purchasers, when they relied wholly on the
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appellant’s skill and professional competence in the determination of the quality of the aluminium products ordered/purchased by the respondents. According to the learned counsel, this is more so, when the respondents had hitherto held themselves out to be experts in the aluminium business. Thus, the corollary is such, that the appellant should thereby be absolved from liability.
Basically, the essential characteristic with regard to the principles of contributory negligence, is to the effect that the party charged must be primarily liable for the negligence if any, that gave rise and caused the damage or injury. The principle of contributory negligence is founded upon the application of common sense to the simple facts of life. These are facts which reveal the action or inaction of a person who although was not primarily responsible for an accident or the cause of an injury, had by his own conduct created a situation which favoured the cause of the accident and or resulted in the injury which had occurred; be it in the form of damages or otherwise.
Thus, contributory negligence as a defence to a claim is essentially predicated on negligence. It
14
applies to cases where a plaintiff has, through his own negligence, contributed to cause, the damages he incurred as a result of defendant’s negligence. Indeed, a plea of contributory negligence is tantamount to a tacit admission of the defendant’s primary responsibility for the complaint of negligence and thereby relieves the plaintiff of the burden of proving negligence. See S.C.C. (Nig.) Ltd. & Ors. vs. Mrs. Igueriniovo (2004) All FWLR (Pt.189) 1133 @ 1148-1149.
Without standing logic on its head and in the instant case and the given circumstances; can it be gainfully argued that the respondents can be held to be disentitled from relying on the appellant’s knowledge, skills and or professional expertise; pray on whose professional sagacity could they have been expected to bank on and rely upon?. To my mind, professionals are meant to be what they portray or profess to be. Dependable/reliable ally and true experts in/at whatever it is that they do. In the instant case, the respondents cannot be adjudged as having been contributorily negligent in the course of determining the quality of the ordered/purchased aluminium products.
?Furthermore, on
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the argument of the learned appellant’s counsel that the failure of the respondents to return the goods timeously, amounts to acceptance. This argument is generally regulated by Section 34 the Act which states provides thus:
“(1) Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.
(2) Unless otherwise agreed when the seller tenders delivery of the goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.”
In the instant case, it is in evidence on the printed record that the only or readily available equipment that could accurately measure and determine the guage of the roofing sheets is a “caliper.” It is also in evidence that the respondents did not posses this equipment and which said position or situation is not the same with that of the appellant. Again, it was not shown that the roofing sheets
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were examined and confirmed to be of the right gauge in the presence of the respondents. Furthermore, it is in evidence that the respondents requested the opportunity to examine and ascertain the gauge of the roofing sheets using the caliper of the appellant, to which the appellant refused to accede or cooperate. Flowing from the above pieces of evidence on record and in line with the provision of the Section 34 of the Act reproduced above, it is my firm view point that the respondents have not accepted the goods as to amount to such an acceptance being deemed as a waiver of their right of rejection. Also, where goods are rejected, it is not the responsibility of the buyer to return them to the seller, so long as he informs the seller that he has rejected and or refused to accept them. See the case of Mary Ajayi v. Alice Ebum (1964) N. M. L. R. 41. Thus, I am not in tandem with the submission of the learned counsel to the appellant that, failure on the part of the respondents to return the goods to the appellant, notwithstanding the alleged threat by the appellant, “was crystal clear evidence of having accepted the goods.” The respondents are not duty bound to
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convey the goods to the appellant, provided they have informed the appellant of their rejection, which was promptly done in this case. Thus, the issues formulated for determination of this appeal, are hereby resolved against the appellant and in favour of the respondents.
In the premise, I hereby find that this appeal is unmeritorious and the same is hereby dismissed by me. In this regard, the judgment of the Lower Court delivered on the 23rd day of November, 2010 in Suit No.E/439/2004 is thereby affirmed/upheld by me. N100,000.00 costs is awarded in favour of the respondents.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother MASSOUD ABDULRAHMAN OREDOLA JCA. I agree with him that this appeal is wholly without merit and should be dismissed. The appellant supplied wrong goods to the Respondents causing the Respondents to lose other contracts. There is no reason for the breach of contract.
I affirm the decision of the trial judge. I dismiss the appeal. N100,000.00 costs to the Respondents against the Appellant.
TOM SHAIBU YAKUBU, J.C.A.: Upon my perusal of the judgment rendered
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by my Lord, MASSOUD ABDULRAHMAN OREDOLA, JCA., I found myself in complete agreement with the lucid and meticulous reasons contained therein, such that I have nothing more useful to add thereto.
I, too dismiss the appeal accordingly. I adopt the order as to costs of N50,000.00 awarded to the respondents.
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Appearances:
Ikeazor Akaraiwe, Esq. with him, Mrs. Joy NnaniFor Appellant(s)
Mrs. A. N. I. NnadozieFor Respondent(s)
Appearances
Ikeazor Akaraiwe, Esq. with him, Mrs. Joy NnaniFor Appellant
AND
Mrs. A. N. I. NnadozieFor Respondent
