JOHN HOLT PLC v. PROFESSOR SULEIMAN OLAYIWOLA GIWA & ANOR
(2018)LCN/12091(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of October, 2018
CA/L/1267/16
RATIO
APPEAL: WHERE ISSUE IS NOT DERIVED FROM GROUND OF APPEAL
“Consequently, an issue formulated by a party that is not derived from, related to or derivable from any of the grounds of an appeal/cross-appeal would lack the requisite foundation for relevance to and connection with the appeal for the purpose of determination by the appellate Court. An appellate Court would lack the vires to consider such an issue or issues because its jurisdiction would not have been properly and validly invoked over and in relation to the issue/s, which is/are legally incompetent and liable to be struck out in limine by the Court. In addition to the cases cited by counsel on the position of the law on the principle, see Uzoagba v. COP (2012) 11 MJSC, 75, Akindipe v. State (2012) 16 NWLR (1325) 94, Husseni v. Mohammed (2015) 3 NWLR (1445) 100 @ 124.” PER MOHAMMED LAWAL GARBA, J.C.A.
DAMAGES: GENERAL DAMAGES
“Apart from this position, the law is very elementary in all Courts of record in Nigeria, that the relief for general damages needs not be specifically pleaded and/or proved before a Court could properly grant or award same. This principle of law is based on the fact that ‘general damages’ are presumed by the law to flow directly and naturally from and as a consequence of the wrongful act or omission which constitutes an infringement or violation of a legal right of the complainant. Incar Motors v. Benson (1975) 3 SC, 177; Osuji v. Isiocha (1989) 3 NWLR (111) 623; Yalaju Amaye v. AREC (1990) 1 NWLR (145) 422; SPDCN Limited v. Teibo (1996) 4 NWLR (445) 657; UAC Nigeria Plc v. Irole (2001) 6 NWLR 5 NWLR (707) 583, UAC Nigria Plc v. Sobodu (2007) 6 NWLR (1030) 368.” PER MOHAMMED LAWAL GARBA, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“The primary duty of a Court is to fully evaluate the evidence adduced by the parties and ascribe to the evidence the probative value based on relevance and admissibility and then form its decision based on the facts and evidence before it. See the cases ofOKADIGBO & ORS v OJECHI & ORS (2011) LPELR – 4687 (CA); AMADI v FRN (2008) LPELR – 441 (SC).” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
JOHN HOLT PLC Appellant(s)
AND
1. PROFESSOR SULEIMAN OLAYIWOLA GIWA
2. HIGS NIGERIA LIMITED Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the Lagos State High Court delivered on 2nd February, 2016 in Suit No. LD/657/2011 by which judgement was entered in favour of the respondents in terms of reliefs 1 and 2 claimed in the Statement of Claim. Five Hundred Thousand Naira (N500,000.00) was in addition, awarded as general damages for breach of contract, all against the Appellant.
Premised on four (4) grounds of dissatisfaction with the decision, the appeal was brought by the Notice of Appeal dated 9th March, 2016 and in the Appellant’s brief filed on 12th May, 2017, deemed on 4th October, 2017, three (3) issues are said to arise for determination by the Court: They are: –
(i) Whether having regard to the pleadings of the Parties and the evidence adduced, the Learned Trial Judge was right in granting judgement in favour of the Respondents in terms of reliefs 1 and 2 of the Statement of Claim and making the award of N500,000.00 as damages for trauma and being kept out of the use of their money for over 5 years?
Grounds 1 and 3 of the Notice of Appeal.
(ii) Whether or not the Learned Trial Judge restricted himself in his judgment only to the evidence before the Court and if the answer is in the negative, whether he relied on his own personal observations and findings in respect of the issues in controversy in the case? Ground 4
(iii) Was the Trial Judge right in discountenancing Exhibit C8 Page 2 as having been procured by the Appellant and if not, whether the Learned Trial Judge was wrong in granting judgement to Respondents in the face of said Exhibit C8 Page 2
In the Respondents’ brief filed on the 2nd November, 2017, two (2) issues are submitted for decision by the court in the appeal as follows: –
1. Whether the 27 KVA Generator Set was bedeviled with a myriad of problems within its warranty period as to warrant a recall/replacement of the said generator set by the Appellant which Appellant failed to carry out, sequel to which the lower Court was justified in its decision granting the relief sought by the Respondents against the Appellant – This issue is issues 1 and 3 in the Appellants’ Brief of Argument.
2. Whether the lower Court restricted itself to only legally admissible evidence in its decision granting the reliefs sought by the Respondents in the suit against the Appellant issue 2 of the Appellants; Brief of Argument.
Looking at the issues formulated by the Appellant’s Counsel, the crucial complaint common to all of them is whether the Respondents proved their claims as required by the law, to be entitled to the judgement entered in their favour.
In the case ofSha v. Kwan (2000) 8 NWLR (670) 685 @ 700, it was held by the apex Court that: –
‘The Court of Appeal is at liberty and possess the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues, or, as pointed out above, to reframe the issues by the parties if, in its views, such issues will not lead to proper determination of the appeal.’
The position was affirmed and restated in many later decisions by the apex court including Onochie v. Odogwu (2006) 2 SCNJ, 96, (2006) 6 NWLR (975) 65; Agbareh v. Mimra (2008) 2 NWLR (1071) 78 @ 410; Chabasaya v. Anwasi (2010) 10 NWLR (1201) 163 @ 181, Governor, Ekiti State v. Olubunmo (2017) 3 NWLR (1551) 1 @ 23.
On the basis of these authorities, I intend to determine the appeal on the sole issue of: –
‘Whether the Respondents proved their claims as required by law to be entitled to the judgement entered in their favour.’
This issue covers all the points canvassed in the arguments by the learned counsel for the parties on their respective issues.
Appellant’s Submissions:
The submissions are to the effect the Respondents did not plead the material facts, i.e. technical grounds and detailed facts upon which their paragraphs 4, 5, 6, 7 and 8 of the statement of claim and paragraph 1 and 2 of the Reply to the statement of defence are based that the generator supplied to them and installed by the Appellant was defective, fake, substandard, inferior or refurbished and not a brand new one of the best qualify they paid for. The case of Lawal v. Oke (2001) 7 NWLR (711) 88 @ 110, was cited on the place of pleadings in civil matters and it is submitted that the Respondents did not adduce credible evidence to establish the weighty avernments in their pleadings as required by the law in Section 131 and 132 of the Evidence Act, 2011, on the burden of proof.
According to counsel, the mere fact that the generator was tripping off due to one fault or another did not necessarily imply that it was defective, sub-standard, fake, inferior, refurbished and not a brand new set in the absence of the specific details and precise wrongful acts of the Appellant that support the assertion.Rinco Constr. Company Limited v. Veepee Industry Limited (indicated to be (supra) but not cited before then in the brief) page 85 @ 99, Ngilari v. Mothercat Limited (1993) 8 NWLR (311) 370 @ 373, Ezemba v. Ibeneme (2004) 4 NWLR (894) 617 and Buhari v. Obasanjo (2005) 13 NWLR (941) (no page provided, but it is page 1) were referred to on the burden of proof provided for in Sections 131, 132 and 133 of the Evidence Act, 2011 and it is contended that the CW1’s evidence as contained in the statements on oath filed on 9th June, 2011 and 8th September, 2011 did not contain the evidence required to discharge the burden on the Respondents. That the Respondents needed the evidence of a technical expert to be able to discharge the burden of proving the technical case they set up in their pleadings and that the ipse dixit of CW1 and CW2 was not enough to establish the claim in the pleadings.
The High Court is said to have erred when it found at page 374, lines 18-21 of the Record of Appeal that the generator could not have been a brand new one, as the finding was predicated on conjecture and speculation rather than evidence placed before it. Pages 370, lines 28-38, 371, lines 29-31 and 374, lines 18-21 are cited in support of the submission. In further arguments, counsel said that pieces of facts were volunteered by the High Court on which the parties did not join issues or pleaded by the Respondents, thereby making up a case not pleaded by them and was influenced in to making findings based thereon. Cases on the functions of pleadings, the law that a court must confine its decision to the case presented in the parties? pleadings and that evidence on facts not pleaded goes to no issue, were referred to.
They include Kyari v. Alkali (2001) 11 NWLR (724) 412 @ 433-4, Fagbenro v. Arobadi (2006) 7 NWLR (978) 172 @ 194-5 and Adejumo v. Ayantegbe (1989) 3 NWLR (110) 417 @ 453. Counsel argued that if the High Court had not taken into account the issues not joined by the parties in their pleadings, its decision might have been different as they were the fulcrum upon which the case turned before it, citing Ajayi v. Fisher (1956) 1 FSC, 90. Based on pages 372-373, lines 1-14 of the Record of Appeal, Counsel said the High Court descended into the arena of the case before it by embarking on a technical analysis of interrogating, analyzing and applying the contents of Exhibit C12, drawing far-reaching inferences, conclusions and making findings on technical matters relating to the mechanics of the generator set in question, thereby assuming the role of a witness in addition to that of a Judge. Among other cases, Savannah Ventures Limited v. W.A.B. Limited 10 NWLR (2004) 254 (sic) and Ojiako v. Ewuru(1995) 9 NWLR (420) 460 @ 47 were referred to on the argument and counsel said the Appellant?s right to fair hearing was denied by the approach of the High Court.
It is then submitted that the High Court also erred in granting relief (1) for money had and received on ground of failure of consideration since the generator was supplied and installed by the Appellant and used by the Respondents.
Further, that the Appellant is exculpated of any liability by Exhibits C2 and C4, having fully performed the contract between the parties. On the authority of Usikaro v. Itsekiri Land Trustees (1991) 2 NWLR (172) 150 @ 177 and Badmus v. Abegunde (1999) 11 NWLR (627) 493 @ 503, it is contended that the Respondents did not plead the facts to support the award of amount of general damages by the High Court and the law is that a Court has no power to make an order not asked for and which the party against whom it is to be made did not have the opportunity to resist it.
In addition, it is argued that the High Court was wrong to have used and relied on page 1 of Exhibit C8 and at the same time discountenanced page 2 of the same Exhibit on the ground that it was procured two (2) months later by the Appellant when that fact was not pleaded by the Respondents and no evidence on it was adduced at the trial. According to Counsel, if the High Court did not discountenance or reject page 2 of Exhibit C8, its decision would have been different since it would have seen that the generator had exceeded the period of warranty for recall or replacement, which was the threshold of the Respondents’ case.
In conclusion, the Court is urged to allow the appeal.
Respondents’ Submissions:
It is submitted that the case of the Respondents in paragraphs 7-10 of the statement of claim which was supported by the evidence adduced before the High Court, was that they first complained about the problems with the generator set sold to them and installed by the Appellant in January, 2011 and not in May, 2011 as claimed by the Appellant. That the warranty period of twelve (12) months from start-up or 2000 hours given by the Appellant did not expire or was not reached at the time of the complaints and the request by the Respondents for the Appellant to recall and replace the generator was made after several attempts by the Appellant to solve the problems failed.
It is contended that the warranty given by the Appellant on the generator was for recall and replacement during the period stated therein and not the Appellant to repair faults complained of by the Respondents or free service thereof. Pages 11-17 of the Record of Appeal and Exhibit C7 were referred to and it is further submitted that the request by the Respondent for the recall and replacement of the generator, made on 8th April, 2011 vide Exhibit C9, was before the generator reached 2000 hours of use provided for in the warranty, and not as claimed by the Appellant when the hours of use read more than 2000 hours as at 7th May, 2011.
The Appellant was said to have admitted the fact in paragraph 10 of the statement of defence wherein it admitted receiving the named correspondences from the Respondents and so there was no need for proof of what is admitted, on the authority of inter alia, Nwankwo v. Nwankwo (1995) 5 NWLR (394) 154 @ 171. Learned Counsel argues that the High Court was right in the decision that at the time of the request or demand by the Respondents for the recall or replacement of the generator, the hour reading was only 1,716 hours as shown in Exhibit 8 and so within the warranty period. That the High Court considered Exhibit P8, of a single page, in its decision and that no oral evidence is admissible as evidence of it or to contradict it by virtue of the provisions of Section 128(1) of the Evidence Act, 2011 and the authority of Kimdey v. Miltary Governor of Gongola State (1988) 1 NWLR (77) 445 and Fashanu v. Adekoya (1974) 1 ALLNLR (no page provided). What are said to be the problems of the generator were argued and the Court is urged to hold that the High Court was right in its decision which was based on the evidence before it.
Turning to the award of damages, counsel submits, citing Best Nigeria Limited v. Black Wood Hodge Nigeria Limited (2011) 15 WRN 1 @ 32-3 and Tao & Sons Limited v. Governor, Oyo State (2011) 176 WRN, 157 @ 170, that contrary to the argument of the Appellant?s Counsel, the law is that general damages need not be specifically pleaded and proved as they are deemed to flow from a wrong complained of and committed against a party. Reference was made to paragraph 8 of the statement of claim and it is submitted that the Respondents sufficiently pleaded and claimed general damages which was awarded by the High Court.
It is then argued that the High Court did not descend into the arena by making a case, for the Respondent from personal observations, but rather drew inferences from the facts and evidence placed before it and the Court is urged to so hold.
In conclusion, the learned counsel prays the Court to dismiss the appeal on the ground that the High Court relied on legally admissible evidence for its decision.
In the Reply brief, it is argued that the Respondents? issues do not arise from any of the Appellant?s grounds of appeal and so incompetent, liable to be struck out since the Respondents have no cross appeal, on the authority of, inter alia,Musa v. Commissioner of Police (2004) 9 NWLR (879) 483. The cases of Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (49) 284 @ 304, Inua v. Nta (1961) ALLNLR 576 and Ejowhomu v. Edok-Eter Mandilas Limited (1986) 5 NWLR (39) 1 @ 16 were cited on the law that an issue for determination in an appeal not raised from any ground of the appeal would not be considered by the appellate Court being incompetent. Other cases and Order 19 Rule 3(1) and 40 (sic) (it is Rule 4(2)) were cited on the position and it is said that the issues ought to be struck out along with all the submissions thereunder.
Counsel then argues that the material points canvassed in the Appellant’s brief were not answered or countered at all in the Respondents’ brief and deemed, on the authority of Okongwu v. NNPC (1989) 4 NWLR (115) 256 and UBA v. Europharm Nigeria Limited (1990) 6 NWLR (155) 239, conceded.
Resolution of Issue:
I would start a determination of the issue with the complaint or objection raised in the Appellant’s Reply brief that the Respondents’ issues do not arise from any grounds on the Appellant’s Notice of Appeal and so incompetent since the Respondents do not have a cross appeal. In the appellate Courts, the law is now common knowledge that only issues which are derived or distilled from valid and competent grounds of an appeal are relevant, live and material for consideration and determination by the Court. It is the Notice of appeal or cross-appeal, as the case may be, that would contain the primary complaints against and reasons for dissatisfaction with the decision of a lower Court which are succinctly framed or couched in form of grounds of the appeal, that would be the foundation of and give rise to the material and relevant issues to be decided at the appeal.
Consequently, an issue formulated by a party that is not derived from, related to or derivable from any of the grounds of an appeal/cross-appeal would lack the requisite foundation for relevance to and connection with the appeal for the purpose of determination by the appellate Court. An appellate Court would lack the vires to consider such an issue or issues because its jurisdiction would not have been properly and validly invoked over and in relation to the issue/s, which is/are legally incompetent and liable to be struck out in limine by the Court. In addition to the cases cited by counsel on the position of the law on the principle, see Uzoagba v. COP (2012) 11 MJSC, 75, Akindipe v. State (2012) 16 NWLR (1325) 94, Husseni v. Mohammed (2015) 3 NWLR (1445) 100 @ 124.
In the present appeal, the Respondents have no cross-appeal as Respondents to the appeal and also have not filed a Respondents’ notice and so are confined and restricted in the formulation of the issues for determination in the appeal, to the grounds of appeal contained on the Appellant’s Notice of Appeal outside of which the law does not allow them to venture. Although the Respondents are not bound to accept the formulation of the issues by the Appellant and are entitled to couch the issues in slants favourable to them, they cannot raise issues which are not derivable from and have no connection with the grounds on the Notice of Appeal filed by the Appellant. If they pretend to do so, the issues would be incompetent, invalid in law and liable to be discountenanced in the determination of the appeal or be struck out. Shittu v. Fashawe (2005) 7 SC (Pt. II) 107, Ossai v. Wakwah(2006) ALL FWLR (303) 239, Ukiri v. Geco-Prakla Nigeria Limited (2010) 16 NWLR (1220) 544, Eyo v. Okpa (2010) 6 NWLR (1191) 611.
I have earlier on set out the issues formulated in the Respondents’ brief and as may be remembered, issue 1 is indicated to have been formulated from Grounds 1 and 3 of the Appellant’s Notice of Appeal. For case of reference, it is expedient to call in the said grounds and again, set out the issue here. They are as follows:-
“Whether the 27 KVA Generator Set was bedeviled with a myriad of problems within its warranty period as to warrant a recall/replacement of the said generator set by the Appellant which Appellant failed to carry out, sequel to which the lower Court was justified in its decision granting the relief sought by the Respondents against the Appellant ? This issue is issues 1 and 3 in the Appellants? Brief of Argument.”
1. The Learned Trial Judge erred in law when he held in his judgement as follows:
The Claimants’ reliefs 1 and 2 hereby granted as prayed while I am satisfied that the Claimants having proved breach of contract are entitled to an award of general damages which is hereby assessed as (sic) N500,000.00 (Five Hundred Thousand Naira) for the trauma and for being kept out of the use of their money for over 5 years.
2. The Learned Trial Judge erred in law in acting as a father Christmas in his judgement and granting reliefs 1 and 2 in these terms to wit:-
1. N2,172,373.80 being money had and received without consideration as there was no failure of consideration in the transaction and also;
3. N500,000 as damages for the trauma and for being kept out of the use of their money for over 5 years when grounds of claim for trauma and being kept of money did not come from the Respondents themselves but from the Honourable Court suo motu without calling upon Counsel to address the Court on the same.
A cursory look at the grounds of appeal from which the above issue was said to have been formulated shows that the issue is totally and completely not related to or connected with the complaints in the two (2) grounds of appeal on the award of N500,000.00 damages and grant of the relief for money had and received without consideration.
It is therefore ‘clear as crystal’ that the issue is not derivable from the two (2) grounds from which it was claimed to have been distilled and so the Appellant’s Counsel is right, and I agree with him, that the issue is not competent since it does not also relate any of the other grounds of the appeal. The issue on that ground is liable to be struck out.
Issue 2 of the Respondents is indicated to have been framed from ground 2 of the Notice of Appeal which is in the following terms: –
“The Learned Trial Judge erred in law when he entered judgement in the Respondents’ favour in a situation where the 27KVA F.G. Wilson generator had clocked 2234 hours as at 27/5/2011, well over the prescribed warrant threshold of 2,000 hours.”
On its part, the issue is couched thus (again): –
“Whether the lower Court restricted itself to only legally admissible evidence in its decision granting the reliefs sought by the Respondents in the suit against the Appellant – issue 2 of the Appellants’ Brief of Argument.”
Apparently, the issue is not traceable to the above ground which complaints of error over whether the period of warranty had expired as at 27th May, 2011.
Once more, I agree with the Appellant’s Counsel on the ground that he is right, that the issue is not related to any of the grounds of the appeal and so incompetent and liable to be struck out.
The two (2) issues raised in the Respondents’ brief for the aforementioned reasons, would be discountenanced in the determination of the appeal.
However, the arguments contained in the Respondents’ brief are answers to the submissions in the Appellant’s brief on the issue raised/reframed by the Court for determination of the appeal and so would be considered by the Court.
From the cases presented by the parties in their pleadings and evidence placed before the High Court, they are one and do not dispute the sale and installation of a 27 KVA Generator by the Appellant to the 2nd Respondent and that warranty of twelve (12) months or 2000 hours from start-up was given on the Generator in the sale agreement signed by the parties. The facts are contained in paragraphs 4, 5 and 6 of the Respondents’ statement of claim dated 9th June, 2011 at pages 3-4 of the Record of Appeal and paragraphs 1 and 3 of the Appellant’s Statement of Defence dated 2nd August, 2011 which appear at page 26 of the Record of Appeal. The evidence presented at the trial on these facts is to be found in paragraphs 6, 7, 8, 9, 10 and 11 of the Statement on Oath of the 1st Respondent who testified as CW1 and paragraphs 3, 4, 5 and 6 of the Statement on Oath of one Adekunle Owofadeju dated 19th November, 2013, who testified as DW1.
The only issue of dispute between the parties at the trial was whether the right of the Respondents to request or demand for replacement or recall of the generator by the Appellant was made before the expiration of the warranty period of either 12 months or 2000 hours from start-up. Since the parties do not dispute that the Generator was installed at the premises of the Respondents on the 27th September, 2010 and the demand/request for the replacement was made in April, 2011, the twelve (12) months, as an alternative, in the warranty given for the Generator, the demand/request was clearly made within the twelve (12) months warranty. This was not an issue joined by the parties as their dispute was and remains whether by the date the request/demand for replacement was made, the reading on use of the generator was before or after the 2000 hours from the start-up.
The relevant pleadings by the Respondents on the issue are to be found in paragraphs 9 and 10 of the statement of claim which aver that: –
9. By a letter dated 22nd March, 2011, the Claimants complained to the Defendant that the generator set was not serving any useful purpose and had turned to become a source of distress. The said letter is hereby pleaded.
10. In another letter dated 8th April, 2011, the Claimant Solicitors wrote to the Defendant to recall the generator set but to no avail. The said letter is hereby pleaded.
The evidence in support of the pleadings by the Respondents is at paragraph 14 and 15 of the 1st Respondent’s statement on Oath which are repetition of the averments.
The Appellant’s averments on the issue are at paragraphs 5, 7 and 8 of the statement of defence which say that: –
5. In further answer to paragraph 7(i), (ii) and (iv) of the Statement of Claim, the Defendant avers that sometime in March 2011 the Defendant responded to distress call by the Claimants in respect of the generator that water was gushing out from the generator – a sign of over-heating.
The Defendants servants installed a new water pump at no cost to the Claimants based on the warranty to replace the damages water pump, which damage was as a result of over-heating.
The over-heating and high-pitched noise level of the generator were caused by over-loading of the generator by the Claimants. The fan-belt was re-adjusted and the water-hose clips re-tightened and the radiator was steam cleaned because of the over-heating it had experienced.
7. In further answer to Paragraph 8 of the Statement of Claim, the Defendant avers that there was no other complaint from the Claimants other then the demand for replacement of the said generator with a brand new set.
The said request for replacement of the said generator is being made at a time when the generator had clocked 2500 hours, which is beyond the manufacturer’s warranty. Based on the F.G. Wilson United Kingdom (the Manufacturers), the warranty period lapses at 2,000 hours or one (1) year, which ever comes, first. The Defendant avers that since the said generator has clocked 2,500 hours, the set is no longer under warranty and therefore no such claim can be on the Defendant anymore.
8. As regards paragraphs 9, 10, 11 and 12 of the Statement of Claim, the Defendant avers that it received the said correspondences referred to but denies that it is liable for the Claimants? claim in this Suit. The Defendant avers that there was no failure of consideration and avers that the Claimants (and not the Defendant) were solely responsible for the malfunctioning of the said generator set by knowingly over-loading same beyond the manufacturer’s capacity and the specification.
Paragraphs 10, 13, 18 and 20 of the statement of oath by DW1 represent the evidence given in support of the above pleadings and are also repetition of same.
Now, the letter dated the 22nd March, 2011 from the 1st Respondent to the Appellant in respect of the Generator, admitted in evidence as Exhibit C7 and admittedly received by the Appellant as seen above, was said to be the first letter of demand from the 1st Respondent is at page 18-19 of the Record of Appeal. It should speak for itself and here it is: –
22nd March, 2011
No. 18 Ugo Nnabuife Street
The Manager,
Ajao Estate,
Customer Service (Sale Division Lagos.
John Holt Nigeria Limited,
Oregun, Lagos.
Dear Sir,
RE: POOR PERFORMANCE OF 27KVA GENERATOR
I wish to express in very strong terms my dissatisfaction with the performance of my generator purchased from your company. The generator was paid for on 27th April, 2010 under the name HIGS NIG LTD. The generator a 27KVA Perkins model was delivered to my residence about the 24th September, 2010.
This it has only been in use for about five months (5 months)
However, within this short space of time it has been functioning rather like a refurbished generator instead of a brand new one. On numerous occasions, I have had to contact your technical team,, headed by Mr. Clement. The team has come around to carry out numerous repair works which I find disturbing for a supposedly new generator. All this is despite having regular oil and air filter changes as stipulated by your manual.
With this time frame the generator has gone off quite a number of times. The disturbing aspect to this is that the radiator kept going short on water, the engine itself that showed a low level of engine oil. After a few such problems with the radiator, the team come round and dismantled the radiator for gushing about two and half months ago. This failed to check the problem. Then the team came round again for further assessment and assured me the problem had been finally sorted out after tightening some bolts and nuts. But to my chagrin, the generator shut off about 4 times thereafter necessitating a visit by the team for another assessment. Adding to any worries this time was the fact that the oil level had also gone dangerously low causing us to turn off the generator permanently until after the assessment.
The visit culminated in the change of the water pump about two weeks ago as this was then though to be the source of the problem.
However, two nights ago again the generator tripped off. state that after all these myriad of problems, I cannot but begin to wonder what type of generator I got foisted on me. I think and belief that it is too early to be having so many problems with a generator that is just about 5 months in use. A brand new generator should not be functioning this new.
I am worried about this situation. Please I need something radical done about this to save me further emotional turmoil. This is a letter I had intended to submit as far back as 8 March, 2011 but was prevailed upon to withhold in order to give your group of technicians an opportunity to see if the problem could be rectified in its totality. But since this has not happened I need to get the issue on record so I could get the benefit of a radical solution to it all.
Yours,
Dr. Suleman Olayiwola Giwa.
The pith of the letter is the complaint that the generator sold to Respondents and installed by the Appellant was ‘functioning rather like a refurbished generator instead of a brand new one’ due to the problems stated therein and the need for ‘something radical done about this’ This letter as indicated therein was written after informal complaints about the generator was made by the 1st Respondent which the attempts by the Appellant’s Technicians did not solve to his satisfaction; the last which was the replacement or change of the water pump carried out on the 15th March, 2011 as per Exhibit C6; which was the Appellant’s Job Card (CRDN) Service Report signed its Technicians.
Undoubtedly, from the terms of Exhibit C7, the complaints on the Generator by the 1st Respondent to the Appellants started before the date it was written and that the Appellant had tried to solve them, all within the period and hours of the warranty given by the Appellant. However, the letter did not expressly request or demand for the replacement of the generator on the grounds of the complaints by the 1st Respondent which were attended to by the Appellant. Even after the complaints including the Exhibit C7 and attempts by the Appellant to solve them, the Respondents continued to use the Generator until the 8th April, 2011 when the Respondents? Counsel wrote Exhibit C9 to the appellant demanding for the recall of the Generator on ground of breach of the warrant of sale between the parties.
What was the hour reading on the Generator by the date the letter in Exhibit C9 was written, from the pleadings and evidence before the High Court?
There was no avernment in either Statement of Claim or Reply to the Statement of Defence of the Respondents on the fact of the hour reading on the Generator as at the date of the letter in Exhibit C9; i.e. 8th April, 2011. For the purpose of the claim for breach of the warranty in respect of the hour reading on the Generator, the actual reading as at the date of Exhibit C9 was relevant, essential and material fact that ought to be specifically pleaded by the Respondents so as to give the Appellant adequate notice of the reading as at the time the demand for the recall of the Generator was made.
However, the case of the Respondent it may be recalled; was that the contract between the parties for the sale of the Generator was for a brand new generator, of the best quality and fit for the purpose of generating electricity without breaking down and will continue to operate in that manner for a period of 12 months or 2000 hours of continuous unbroken hitch free operation, from start-up. That the Appellant breached the warranty as the generator was not of the best quality and so broke down during the period of the warranty. Paragraphs 4, 5, 6 and 7 of the Respondents? Statement of Claim clearly defined the case put forward by the Respondents before the High Court in the following terms: –
“By a contract made between the parties on or about the 21st April, 2010, it was agreed that the Defendant should sell and deliver to the Claimants a brand new soundproof 27 KVA F.G. Wilson Generator set and that the Claimants should purchase the 27 KVA generator set for the price of N2,172,373.80, which the Claimants then paid to the Defendant.
It was an express term and condition of the said sale and the Defendant thereby warrant that the said generator set was then of the best quality and fit for the purpose of generating electricity without breaking down and will continue to operate in that manner for a period of 12 months from start-up or 2000 hours of continuous unbroken hitch-free operation. The said warranty was given by the Defendant in the customer invoices and operational manual issued by the Defendant. The said invoices are hereby pleaded.
The Defendant on 27th September, 2010, pretended to deliver and install at Claimants the premises at No. 18 Ugo Nnabuife Street, Opposite Rev. King Church, Ajao Estate, Lagos a generator set described as 27 KVA soundproof model/serial No. P27/FGWPE PP48 N3KO2216.
In breach of the said condition, term and warranty, the said generator set installed by Defendant was not of the best quality and fit for the purpose of generating electricity without breaking down at the date of the said sale/installation or for the duration of the warranty.
PARTICULARS
(i) The generator set began tripping off and shutting down every now and then in the first week of January, 2011 and less than 100 days after installation or start up.
(ii) The radiator malfunctioned in February, 2011 and was dismantled by Defendant for steam washing but without satisfactory result.
(iii) On 15/03/2011, the Defendant changed the water pump but without satisfactory result.
(iv) On 25/03/11, the Defendant carried out another round of radiator steam washing without any satisfactory result.”
Although the Appellant denied the averments in the Respondents’ Statement of Claim that the generator was not of the best quality and maintained that it was a brand new generator of premium quality in paragraphs 3 and 4 of the Statement of Defence, it admitted in paragraphs 5 and 6 thereof, that it carried out repairs on the Generator sometime in March, 2011 due to complaints from the Respondents of its break down or malfunction. Apparently therefore, the warranty given by the Appellant that the Generator was to function and serve the purpose for which it was bought by the Respondents without break down for the duration of the warranty, was not met or fulfilled. Since the complaints of breakdown and malfunction started in January, vide Exhibits C4 and C5, through to March, vide Exhibit 6, 7 and 8, and up to April, 2011 when the Exhibit C9 was written by the Respondents, the warranty given by the Appellant for the Generator was in operation at the time that was why the Appellant took the responsibility to attend to and attempted to solve them at its own costs or expense.
The claim in paragraph 6 of the Statement of Defence that as at 7th May, 2011, that ‘the hour metre had clocked 2079 of hours’ does not avail the Appellant since it is clear that the said metre reading was made after the several complaints of break down and malfunction by the Respondent which the Appellant attempted to solve to no avail and after the Exhibit C9 was written by the Respondents. It is not disputed that from the time the formal complaints of breakdown or malfunction from the Respondents started and the attempts by the Appellant to solve them, the hour reading of the metre was within the warranty limit of 2000 hours from start-up. The fact that the metre reading on the Generator was over 2000 hours as at 7th May, 2011 did not show or even suggest that as at 8th April, 2011 when Exhibit C9 was written after the failed attempts by the Appellant to solve the complaints from the Respondents, the reading on the Generator was over the limit in the warranty given by the Appellant. Rather by the contents of Exhibit C12; the service Report prepared, made and signed by the Appellant’s technicians/officers, the hour reading of the metre on the Generator was 1716 as at the 25th March, 2011.
In the above premises, the High Court was right when it stated in its judgment, at page 402 of the Record of Appeal, that: –
“I therefore agree with the Claimants that the change of water pump, fixing of temperature switch and radiator washing etc. done between January and March, 2011 without satisfactory performance of the generator is proof that it could not have been a brand new generator.”
Learned Counsel for the Appellant has accused the High Court of making up a case for the Respondents merely because that Court had appraised the facts, evaluated the evidence placed before it by the parties and drawn the requisite inferences therefrom and ascribed the deserved probative value to the evidence in proof of the material facts of the case before it. The accusation, I must say, arose from lack of proper and adequate knowledge, understanding and appreciation of the primary duty and function of a trial Court in the determination of matters before it. It is the judicial obligation of a trial Court to fully and properly appraise the facts of case, assess or evaluate the entirety of the relevant and material evidence adduced by each of the parties on such facts and ascribed to each piece of evidence; documentary or oral, the deserved probative value, worth or weight based on its admissibility, relevance, probability and conclusiveness, draw necessary inferences from the proved/undisputed facts and then make appropriate findings which would form the basis of its decision/s in the case.
Findings and decisions of a trial Court are made from the requisite inferences drawn from the evidence of proof/undisputed facts of a case on the balance of probability. See: Mogaji v. Odofin (1978) 4 SC, 91 (78) NSCC, 275; Onwuka v. Ediala (1989) 1 NWLR (96) 182; Nneji v. Chukwu (1996) 10 NWLR (478) 265; FBN, Plc v. Oniyangi (2000) 1 NWLR (661) 497, Agbi v. Ogbeh (2006) 11 NWLR (990) 65. It is therefore a show of gross misconception of the duty and function of a trial Court to accuse it of making up a case, descending into the arena, assuming the position of a witness, etc, as was done in the Appellant?s brief, simply because it dutifully carried out its primary duty of appraisal of facts, evaluation of evidence, drawing requisite inferences from proved/undisputed facts and making appropriate and proper findings in a case. The allegations or accusations against the High Court in the Appellant?s brief are completely baseless and uncalled for.
Another misconception by Counsel for the Appellant is the argument that the award of general damages by the High Court was or constituted a grant of a relief not sought for by the Respondents on the ground that they did seek for it. The reliefs claimed by the Respondents in both the writ of summons and in paragraph of their statement of claim are as follows: –
1) N2,172,373.80 being money had and received without consideration.
2) An Order directing Defendant to recall and remove from the Claimants? premises the generator set it installed thereat immediately.
3) N1,000,000.00 damages for breach of contract.
Glaring of these reliefs, expressly sought, is the N1,000,000.00 damages for breach of contract. The award by the High Court was in the following terms: –
” … I am satisfied that the claimants having proved breach of contract are entitled to an award of general damages which is hereby assessed as N500,000.00.”
Without the need waste verbiage, I would just say that it is unserious for Counsel to argue that the award of the general damages by the High Court is one which constitute or amounts to the grant of a relief not sought for by the Respondents. From the award and the record of the facts and evidence as borne out by the Record of Appeal, the relief was not only manifestly and expressly sought for by the Respondents, but satisfactorily and convincingly proved as required by the law.
Apart from this position, the law is very elementary in all Courts of record in Nigeria, that the relief for general damages needs not be specifically pleaded and/or proved before a Court could properly grant or award same. This principle of law is based on the fact that ‘general damages’ are presumed by the law to flow directly and naturally from and as a consequence of the wrongful act or omission which constitutes an infringement or violation of a legal right of the complainant. Incar Motors v. Benson (1975) 3 SC, 177; Osuji v. Isiocha (1989) 3 NWLR (111) 623; Yalaju Amaye v. AREC (1990) 1 NWLR (145) 422; SPDCN Limited v. Teibo (1996) 4 NWLR (445) 657; UAC Nigeria Plc v. Irole (2001) 6 NWLR 5 NWLR (707) 583, UAC Nigria Plc v. Sobodu (2007) 6 NWLR (1030) 368.
The law is also firmly settled that because general damages are presumed by the law to flow directly and naturally from the act or omission complained of in a case, they are such that the Court would award in the absence of any yardstick with which to assess the quantum save the expectation of a reasonable man, in the circumstances of the case.
The assessment of the quantum is therefore at the discretion of the Court based on the test of a reasonable man in the peculiar facts and circumstances of a case, to be exercised, as always, judicially and judiciously. Lar v. Stirling Astaldi Limited (1977) 11/12 SC, 53, Incar Motors v. Benson (supra), Yalaju-Amaye v. A.R.E.C. Limited (supra); Acme Builders Limited v. K.S.W.B. (1999) 2 SC, 1, (99) 2 NWLR (590) 288; Badmus v. Abegunde (1999) 11 NWLR (527) 493; Neka BBBMFG. Company Limited v. ACB Limited (2004) 2 NWLR (856) 521; (2004) 1 SC (Pt. 1) 32, Okwejiminor v. Gbakeji (2008) 5 NWLR (1079) 172.
Since the complaint by the Appellant’s Counsel is on the propriety in law of the grant of the award of general damages by the High Court on the ground that it was not sought for, and not on the quantum of the award and because there is no allegation of failure by the High Court to take into consideration relevant factors or that it took into account irrelevant factors or that it acted under a misapprehension of the relevant principles of law, all I need say on the complaint is that general damages are those which the law implies in every breach of a contract. See Wahab v. Omonuwa (1976) LPELR-3469 (SC). On the ground that the Respondents had proved the breach of the warranty given by the Appellant in the contract for the sale and purchase of the Generator in question, to the satisfaction of the High Court, the Respondents are entitled to the award of general damages implied by the law from that breach.
In the final result, there is no merit in the arguments of the Appellant on all the issues canvassed in the Appellant’s brief as encapsulated in the single issue used by the Court for determination of the appeal. The issue is resolved against the Appellant.
As a consequence, for lacking in merit, the appeal is dismissed and judgement of the High Court is hereby affirmed.
There shall be costs of N100,000.00 in favour of the Respondents to be paid by the Appellant for the prosecution of the appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the opportunity of reading in draft the judgment of my learned brother MOHAMMED LAWAL GARBA, JCA just delivered. I am in agreement with the reasoning and conclusion therein.
The primary duty of a Court is to fully evaluate the evidence adduced by the parties and ascribe to the evidence the probative value based on relevance and admissibility and then form its decision based on the facts and evidence before it. See the cases ofOKADIGBO & ORS v OJECHI & ORS (2011) LPELR – 4687 (CA); AMADI v FRN (2008) LPELR – 441 (SC).
In view of the above, I am in the same tune of reasoning with my learned brother that there is no merit in the arguments of the Appellant on all the issues canvassed.
The lower Court in this case simply carried out its duty of appraisal of facts, evaluation of evidence, drawing the requisite inferences and making appropriate findings. Therefore having gone through the record of appeal, the allegations against the lower Court in the Appellant’s brief are completely uncalled for.
Since the complaints of breakdown and malfunction of the generator started in January, vide Exhibits C4 & C5 and up to April, 2011 when Exhibit C9 was written by the Respondents, the warranty given by the Appellant was in operation at the time and that was why the Appellant took the responsibility to resolve the issue with the generator at its own expense. The content of Exhibit C12 – the service report prepared and signed by the Appellant’s technicians, showed the hour reading of the metre on the generator was 1716 as at the 25th March, 2011. Therefore I find no merit in the arguments of the Appellant.
Thus, with the fuller reasons adduced in the lead judgment, I too dismiss the appeal and affirm the judgment of the lower Court. I also abide by the order as to costs.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the benefit of reading in draft, the lead Judgment delivered by my learned brother, MUHAMMAD LAWAL GARBA, JCA.
I agree with the resolution of the issue which was reframed from the issues set down by both the Appellant and the Respondents in their Briefs of Argument.
I really have nothing useful to add. The appeal lacks merit and it is accordingly dismissed.
I abide with the consequential orders made in the lead Judgment on the issue as to costs of the appeal proceedings.
Appearances:
F.O. Ezekwueche with him, C. OdumaFor Appellant(s)
E.I. Oboh with him, O.J. OyetugaFor Respondent(s)
