CORAM

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PARTIES

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PRODECO INTERNATIONAL NIGERIA LTD

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TEXOLAND INTERNATIONAL NIG LTD

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent had before the Rivers State High Court, instituted an action against the Appellant claiming a declaration that the action of the Appellant in refusing to honour the contractual terms entered into between the parties on the 29/03/2012 as contained in the Appellant’s Local Purchase Order No. PIL 12-01391 constitutes a breach of the contractual agreement; that the action of the 3rd Defendant by unilaterally producing and/or procuring a Quality Control Inspection Report rejecting goods supplied by the Respondent contrary to the earlier report made by the 2nd Defendant after a joint inspection constitutes a fraudulent act which precipitated the breach of the contract by the Appellant; the sum of N132,610,964.48 (One Hundred and Thirty Two Million, Six Hundred and Ten Thousand, Nine Hundred and Sixty-four Naira, Forty-Eight Kobo) only, being and representing special and general damages amongst other reliefs. In response, the Defendants Counter-Claimed against the Respondent. At the end of the trial, the lower Court entered judgment in favour of the Claimant. The Appellant being dissatisfied with the said judgment challenged it on appeal vide its Notice of Appeal containing four Grounds of Appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the learned trial Judge was right in relying on Exhibit C and the fact that Appellant’s Officers received 36 steel dredging pipes supplied by the Respondent, to hold that the said dredging pipes were brand new as required by the Contract made between the Appellant and the Respondent and that Appellant was in breach of contract in failing to pay for the said dredging pipes, when the maker of Exhibit C was not called to give evidence of the expert opinion contained therein, and the Appellant never issued any Receiving and Inspection Report to the Respondent to show acceptance of the said dredging pipes as stipulated by the Contract? Whether the learned trial Judge was right in holding that the Written Statements on Oath of DW1 and DW2 were not sworn before an officer of the Rivers State High Court authorised to take Oaths, and in consequently expunging the said Depositions from Records in this Suit? Whether the learned trial Judge was right in holding that DW3 did not qualify as an Expert Witness, and in rejecting his evidence on that ground? Whether the trial Judge was not wrong in finding the Appellant liable for accrued interests on a loan said to have been obtained by the Respondent from First Bank of Nigeria Plc. to supply steel dredging pipes to the Appellant when the Appellant was not a party to the loan transaction and there was no evidence that the loan was utilized by the Respondent to purchase and supply steel dredging pipes to the Appellant? Whether the learned trial Judge’s reliance on Exhibit A tendered by the Respondent as evidence of the Contract between the parties instead of Exhibit V tendered by the Appellant, and the Reliefs granted in favour of the Respondent can be supported, having regards to the totality of evidence led at the trial?

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RATIONES DECIDENDI

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WITNESS – PRESUMPTION OF FAILURE TO CALL A WITNESS

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“It is in my respectful view out of place to expect the Claimant to call the staff of the 1st Defendant in evidence against it to confirm a document, which the 1st Defendant did not disclaim. It is rather very strange that the 1st Defendant failed to call the QC Engineer Taiwo Adeniyi to discredit his own inspection report. It creates an impression that the 1st Defendant hid or prevented Engineer Taiwo Adeniyi from giving evidence because he would have confirmed the accuracy and authenticity of the Inspection Report in Exhibit C. This is the presumption of law, which has to be invoked against the Appellant. See Jalloc Ltd & Anor Vs. Owoniboys Technical Services Ltd (1995) 4 NWLR (Part 391) P. 534.Mozie & Ors Vs. Mbam Alu & Ors (2006) 15 NWLR (part 1003) 466. See also Section 167(d) of the Evidence Act, 2011”. –

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AFFIDAVIT – POSITION OF THE LAW ON AFFIDAVIT NOT SWORN BEFORE PERSONS DULY AUTHORISED BY LAW

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“It goes without saying that the above depositions could not have been sworn to before an officer of the High Court as this would have taken place in his office in the High Court Registry. The Evidence Act, 2011 forbids the use of any affidavit not sworn to before any duly authorised person. See Sections 109 and 112 of The Evidence Act, 2011. See Union Bank Vs. Estate Of Late Clement Ogeh (2018) LPELR – 46701 (CA); Chidubem Vs. Ekenna (2009) ALL FWLR (pt. 455) page 1692.-

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EXPERT – WHO IS AN EXPERT?

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“Who is an EXPERT? What qualifies a person as an expert? In Sowemimo & Anor Vs. State (2004) 11 NWLR (pt. 885) page 515, Niki Tobi, JSC (of blessed memory) had this to say on this point:
“In Wamba Vs. Kano State Authority (1965) NMLR 15 it was held that in certain cases, evidence of opinion of an expert is relevant but he must be called as a witness and must state his qualifications and satisfy the Court that he is an expert on the subject in which he is to give his pinion and he must state clearly the reasons for his opinion.”
The Court must be satisfied that a witness being put forward as an expert is indeed an expert. It behoves on such witness to convince the Court by stating convincingly his qualifications and experience as whether or not a witness is an expert in an area is a question of law for the Judge to decide. See Eromosele Vs. F.R.N. (2018) UNWLR (pt. 1629) p. 60. –

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AWARD OF DAMAGES – PRINCIPLES OF ASSESSMENT OF DAMAGES FOR BREACH OF CONTRACT

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“The Apex Court in Arisons Trading & Engineering Co Ltd Vs. Military Governor Of Ogun State & Ors (2009) 15 NWLR (pt. 1163) p. 26 had course to explain the principles of assessment of damages for breach of contract thus:
“It is now firmly settled that in a claim for damages for breach of contract, the Court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract. See the case of Mobil Oil Nig Ltd Vs. Akinfocile (1969) 1 NMLR 227. See also Ahmed & Ors Vs. C.B.N. (2013) 2 NWLR part 1339 p.524.”
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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Evidence Act, 2011|Oaths Act|

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