CORAM
PARTIES
JOHN HOLT PLC
1. PROFESSOR SULEIMAN OLAYIWOLA GIWA2. HIGS NIGERIA LIMITED RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents bought a 27 KVA Generator Set from the Appellant, which a twelve (12) months warranty or 2000 hours from start-up was given in the sale agreement signed by the parties. The Generator was installed at the premises of the Respondents on the 27th September, 2010 and same malfunctioned and did not performed as advertised and the Respondents demanded/requested for the Appellant to recall and replace the generator on April, 2011, as contained in its warranty clause after several attempts by the Appellant to solve the problems failed. The Appellant failed to recall or replace the generator on the ground that the period of warranty has expired hence, the Respondents sued the Appellant at the Lagos State High Court wherein the Court in its decision granted the reliefs sought by the Respondents, with N500, 000.00 awarded as general damages for breach of contract, all against the Appellant. Aggrieved the Appellant appealed to the Court of Appeal vide its Notice of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the Respondents proved their claims as required by law to be entitled to the judgement entered in their favour.
RATIONES DECIDENDI
ISSUES FOR DETERMINATION – POWER OF THE APPELLATE COURT TO MODIFY, REJECT OR FRAME ITS OWN ISSUES FOR DETERMINATION
“In the case of Sha 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. –
ISSUES FOR DETERMINATION-STATUS OF ISSUES NOT DISTILLED FROM THE GROUND OF APPEAL/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. –
REPLY BRIEF – CONSEQUENCES OF FAILURE OF A RESPONDENT TO FILE A RESPONDENTS NOTICE OR CROSS APPEAL
“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 Appellants 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”. –
EVALUATION OF EVIDENCE – PRIMARY DUTY OF A TRIAL COURT THERETO
“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 Appellants 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. –
AWARD OF GENERAL DAMAGES – WHETHER GENERAL DAMAGES NEED TO BE SPECIFICALLY PLEADED BEFORE SAME CAN BE AWARDED
“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; YalajuAmaye 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. –
AWARD OF GENERAL DAMAGES – BASIS FOR THE ASSESSMENT OF THE QUANTUM OF AN AWARD OF GENERAL DAMAGES
“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. –
AWARD OF GENERAL DAMAGES- WHETHER GENERAL DAMAGES CAN BE AWARDED WHERE SAME WAS NOT SOUGHT FOR BY A PARTY
“Since the complaint by the Appellants 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. –
COURT- DUTY OF COURT TO EVALUATE ALL THE EVIDENCE OF THE PARTIES BEFORE IT AND ASCRIBE PROBATIVE VALUE THERETO
“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 of Okadigbo & Ors v Ojechi & Ors (2011) LPELR – 4687 (CA); Amadi v FRN (2008) LPELR – 441 (SC)” —
CASES CITED
Not Available