CORAM

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S. M. BELGORE JUSTICE, SUPREME COURT

U. A. KALGO JUSTICE, SUPREME COURT

G. A. OGUNTADE JUSTICE, SUPREME COURT

M. MOHAMMED JUSTICE, SUPREME COURT

I. F. OGBUAGU JUSTICE, SUPREME COURT

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PARTIES

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XTOUDOS SERVICES NIGERIA LIMITED

CHRISTOPHER UDEOGWU

APPELLANTS 

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TAISLI (W.A.) LIMITED

AHMED H. YASSIN

RESPONDENTS 

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AREA(S) OF LAW

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CONTRACT OF SALE

 

 

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SUMMARY OF FACTS

The plaintiff entered into an oral contract to purchase unlisted scrap properties, equipments and vehicles from the defendant. The purchased items were at the defendant’s workshop who claimed that the plaintiff had removed everything he paid for from the workshop, this claim was vehemently denied by the plaintiff.

 

 

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HELD

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The court upheld the decision of the lower court that the trial court has no basis to have awarded damages to the plaintiff and that in the event of failure of the plaintiff to prove his case, the proper thing for the court to do in the circumstance is to dismiss the case. The appeal was dismissed for lacking merit.

 

 

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ISSUES

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Whether or not the Court of Appeal sitting in Benin was right in holding as it did on 30/4/2001 that the learned trial judge did not make any specific finding of fact on the issues submitted for adjudication, particularly on the number of items purchased by the Appellants but not delivered by the Respondents. In other words, what in law amounts to a finding of fact by a trial Court. This issue arises from ground 1 of the grounds of Appeal.

 

Whether or not the Court of Appeal, Benin was right in holding that the damages of N1 Million awarded the Appellant (sic) by the trial court were in law excessive and or without any basis. This issue arises from ground 2 of the grounds of appeal.

 

Whether or not Exhibits B, B1 & B2 carried the evidential value placed on them by the learned trial judge or were wrongly relied upon as decided by the Court of Appeal, Benin. This issue arises from grounds 3 & 6 of the grounds of Appeal.

 

Whether or not an order of dismissal of the plaintiffs’ case is the proper order that ought to have been made by a Court of Appeal in this case upon the Court of Appeal holding that the trial Court made no findings of fact on the issues submitted for trial or whether the proper order in such circumstances ought not to have been one of a retrial. This issue arises from ground 4 of the grounds of Appeal.

 

Whether or not additional issues formulated by the Respondents can be decided upon only where the Respondents file as cross Appeal or Respondents’ notice even where such additional issues arise from the Appellant (sic) grounds of Appeal as in this case. In otherwise, when and under what circumstances can additional issues formulated by the Respondents to an appeal be considered at all for whatever they are worth by the Appeal Court.

 

 

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RATIONES DECIDENDI

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BASIS OF APPEAL

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It is undoubtedly settled law that an appeal is usually against a ratio and not against an obiter except in cases where the orbiter is so closely linked with the ratio to be deemed to have radically influenced the ratio. PER MAHMUD JSC

 

 

 

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BURDEN OF PROOF IN CIVIL CASES

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Where a plaintiff woefully fails to prove his case, the proper order the law requires the court to make is that of dismissal of the plaintiff’s case. PER MAHMUD JSC

 

 

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CASES CITED

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Saude v.Abdulliahi (1989) 7 NWLR (pt. 116) 384;

Ogunbiyi V. Ishola (1996) 6 NWLR (pt 452) 12

Coker V. U.B.A. Plc (1997) 2 NWLR (pt 490) 64

Agunwa V. Onukwe (1962) 2 SCNLR 275;

Oladehin V. C.T. M.L. (1978) 2 SC 23;

Imana V. R See Okpiri V. Jonah (1961) SCNLR 174;

Kurubo V. Zach Motison Nigeria Ltd (1992) 5 NWLR (Pt. 239) 10

 

 

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STATUTES REFERRED TO

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