B.B. APUGO & SONS LTD vs ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD (OHMB)

CORAM

BODE RHODES-VIVOUR

NWALI SYLVESTER NGWUTA JUSTICE, SUPREME COURT

BODE RHODES-VIVOUR

PARTIES

B.B. APUGO & SONS LTD. APPELLANTS

ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD (OHMB)

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Respondent entered into two contracts with the Appellant for the supply, delivery and installation of (a) X-Ray equipment and spare parts and (b) Prosthetic and Orthotic equipment from SIEMENS Aktiengessellschaft (AG) in Germany (Exhibits A & B). The contract sum was paid in full and the Appellant opened Letters of Credit with his bank, Allied Bank of Nigeria Limited which Letters of Credit were only procured in respect of some of the goods. Upon arrival of the goods for which the Letters of Credit were opened, the Appellant demanded further payment before it would release the goods. The Respondent consequently instituted an action against the Appellant and its bankers for refusal to release the goods claiming the sum of £64,000(Sixty-four Thousand Pounds Sterling) being the value of the goods the Appellant failed to order. Upon service of the originating processes, the Appellant’s bank sought and obtained an order of the trial court striking its name from the suit on the ground that it was not a necessary party. An order was consequently made by the trial court and same was affirmed by the Court of Appeal for the release of the goods to the Respondent by the Appellant and same was delivered but not installed. The Respondent therefore engaged a third party to install the equipment. The Appellant on the other hand contended that it had procured and delivered all the equipment ordered by the Respondent and had incurred additional expenses. At the conclusion of trial, the court entered judgment in favour of the Respondent granting the reliefs sought. An appeal to the Court of Appeal at the instance of the Appellant was dismissed hence a further appeal to this court.

HELD

Appeal Dismissed

ISSUES

1. Whether in all the circumstances of this case, the court has jurisdiction to entertain the case of the plaintiff?

2. Whether the courts below did not misapply the legal principle of agency in the circumstances of this case and whether they can rightly rely on extraneous matters to vary the contents of a written document?

3. Whether the Court of appeal was not in error in affirming the award of £64,000.00 when in all the circumstances of this case, plaintiff did not prove its entitlement to such money?

4. Whether the Court of Appeal was right in its resolution of the issue of want of procedural jurisdiction instead of lack of legal jurisdiction of the trial Court?

5. Whether the Court of Appeal was not in error when it held that S.91(3) Evidence Act cannot operate against Exhibits F-Fl?? Whether there was an aspect of the respondent’s claim that could not be justly determined in the absence of Nigeria Deposit Insurance Corporation?