EZENDUKA vs. OKPARAEKE (2020)LCN/14312(CA)
ISSUE: CONTRACT OF SALE OF GOODS- Whether where goods are sold by description and upon delivery the goods materially deviate from what was ordered the buyer is entitled in law to repudiate the contract and demand a refund(Issue is mine)
“I have carefully considered the submission by learned counsel on this issue. Considering my findings in issues 1, and 3 above in favour of the Respondent, the answer to this issue is also in the positive that the lower Court was right by holding that from the onset, the Respondent never accepted the electro tricycles sent to him by the Appellant. I carefully read and considered the pleadings and depositions by the Respondent at paragraphs 8 to 15 of Statement of Claim (pages 6 to 8 of the Records); paragraphs 12 to 23 of the Respondent’s deposition on oath (pages 12 to 14 of the Records); paragraphs 7 to 11 of the Respondent’s Reply to Appellant’s Statement of Defence and Reply to Counter Claim (pages 76 to 80 of the Records) and paragraphs 7 to 11 of the Respondent’s additional written deposition on oath (pages 85 to 88 of the Records) and I am of the firm view that upon taking delivery of the electro-powered tricycles sent to him by the Appellant from China, the Respondent inspected the tricycles and discovered that they are not what he discussed with the Appellant to be shipped to Nigeria. That instead of the popular “Keke Napep” a petrol-powered tricycles used in Nigeria, the Appellant supplied electro-powered tricycles not yet in use in Nigeria. Upon sighting them, the Respondent immediately registered his rejection of the model and type of tricycles sent to him. All plea and entreaties by the Defendant to persuade and convince the Plaintiff to accept the consignment, even at a reduced price, proved abortive and the Plaintiff vehemently refused to accept the consignment as it was not what he ordered for. (See paragraph 10 of the Respondent’s Statement of Claim). In such circumstances, the respondent is automatically entitled to repudiate the contract and demand a refund. In First Bank of Nigeria Plc v. Alexander N. Ozokwere (2006) 4 NWLR (Pt. 970) 422 at 434 paragraph H, this Court per Galadima, JCA, (as he then was) held thus: “In a sale of goods contract, where the goods are sold by description and upon delivery, failed to conform to the description, the buyer is automatically entitled to repudiate the contract and demand a refund. The respondent in circumstance of this case is entitled to a refund when the goods shipped deviated materially from what was ordered or purchased”.
There is evidence before the trial Court that after rejecting the electro-powered tricycles by the Respondent one Mr. Chima Anyaora brokered peace between the parties wherein the appellant voluntarily accepted to be repaying to the Respondent the money he invested in the business installmentally. The Appellant made part payment of One Million Six Hundred Thousand Naira (N1,600,000.00) only into the Respondent’s account. It is his failure to refund the entire sum that led the Respondent to file this suit. The Appellant, who is clever by half, assumed (wrongly in my view) that he can resile out of his contractual obligation by resorting to sophistry and technicality which is unfortunate. The milestone of justice may be slow but when put in motion it grinds and grinds finely. The Supreme Court held in Aliu Bello & Ors. v. Attorney General of Oyo State (1986) LPELR–764 (SC) as follows: “The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not resile in forms and formalities not in technicalities, nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicalities. Law and all its technical rules ought to be but a handmaid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed only serve to render justice grotesque or even lead to outright injustice. The Court will not endure that mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the case before it. I will here cast my lot with my learned brother Eso, JSC, who in the State v. Gwonto (1983) 1 SCNLR 142 at p. 160 postulated that: “The Court is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.”
I resolve this issue in favour of the Respondent.” Per SANGA, JCA.
BLACKSTONE CRUSHING COMPANY LTD. vs. SAMOBA (NIG.) LTD.(2020)LCN/14684
ISSUE: CONTRACT OF SALE OF GOODS- Whether a seller can be held liable for breach of quality or fitness of goods sold in the absence of either implied or express description of purpose for which it was needed by the buyer and warranty as to fitness by the seller before supply(Issue is mine)
“…it is not in doubt that the Claimant/Respondent’s Claim in the Court below was for damages for breach of contract. The Claimant/Respondent claimed that the Appellant sold to it 1,095.92 tons of asphalt for the sum of N14,795,000.00. That the asphalt proved to be of poor quality as it failed to overlay for lack of sufficient binders. The claim is therefore in breach of a contract of sale of goods. Section 3 of the Sale of Goods Law, Cap. 149, Laws of Oyo State, 2000 defines a contract of sale as follows:
3:(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price…
(2) A contract of sale may be absolute or conditional
(3) Where under a contract of sale the property in the goods is transferred from the seller to the buyer is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sale.
The essential characteristics of a contract for sale of goods is that there shall be a transfer of property in the goods from the seller to the buyer for a price in money. It therefore means that the main object of a contract of sale is the transfer of property from the seller to the buyer for a price in money. In the instant case, there is no dispute that the property in the asphalt had passed from the seller (Appellant) to the Respondent (buyer). Indeed, the evidence on record is that the required tons of asphalt was loaded into the Respondent’s trucks in the presence of its officials and driven out of the Appellant’s premises. The price was paid as per Exhibit “C6” (i) and (ii). It is therefore not in doubt that the property in the goods contracted had passed to the Respondent and delivery thereof completed. This is clear in the evidence of the Appellant in paragraphs 7, 8, 9 and 10 of the written Statement on Oath of DW1. Therein, DW1 deposed as follows:
7. Sometimes in April, the Claimant paid the sum of N14,795,000.00 to the Defendant for 1,095.92 Tons of Asphalt. The Defendant issued Receipt to evidence the payment.
8. Sometimes in July, 2010, the officials of the Claimant came to the Defendant’s factory, examined the asphalt and started taking delivery of the asphalt.
9. The Claimant brought its own trucks and its officials inspected and examined the asphalt as each truck was loaded. The asphalt loaded into the trucks of the Claimant were of very high quality and merchantable. The Claimant’s officials were satisfied with the quality of the asphalt loaded into the Claimant’s trucks from the Defendant’s factory.
10. The delivery of the asphalt from Defendant’s factory ended around the end of August, 2010.
The Claimant/Respondent filed a Reply to the Appellant’s Statement of Defence and Counter-Claim. CW2 also filed a written Statement on Oath in support of the averments. Nowhere in the said Reply nor the written deposition of CW1 were paragraphs 7, 8, 9 and 10 stated above denied or controverted. It is obvious therefore that property in the 1,095.92 tons of asphalt had passed from the Appellant (seller) to the Respondent (buyer) as at the end of August, 2010. The law is that, where the buyer has identified and bought specific goods which he has taken away, he cannot be allowed to change his mind. This is because, the law is that risk of any damage. In other words, risk passes with the property unless there is a contrary agreement between the parties. In the instant case, there is no evidence of such contrary intention as there is no written document which stipulates the terms of the contract. The receipt Exhibits “C6(i)” and “(ii)” is only evidence of payment for the asphalt sold but not the document evidencing the contract. Thus, Section 15(a) of the Sale of Goods of Oyo State stipulates as follows:
“15. Subject to the provisions of this Law and of any written law in that behalf there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under contract of sale, except as follows–
(a) Where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the sellers skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose.
Provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.”
There is no doubt that the goods the subject of the transaction between the parties is specified and known by both parties as ASPHALT. Section 15(a) of the Sale of Goods Law of Oyo State (supra) stipulates that in such contracts, there is no implied warranty or condition as to the quality or fitness of the good for any particular purpose. For such warranty or condition to be read into the contract, the buyer must have either expressly or impliedly made known to the seller the particular purpose for which the goods are supplied. Under the proviso thereto, no condition as to fitness for any particular purpose is implied where the contract is for the sale of specified article under its patent or trade name.
Now, there is no evidence on record to show that asphalt is used for only one purpose. The Defendant also pleaded and led evidence to the effect that the Claimant/Respondent did not make it known the particular purpose for which the goods (asphalt) was required. The fact was pleaded in paragraphs 11, 12 and 13 of the Statement of Defence and Counter-Claim as follows:
11. Throughout the period that the Claimant’s officials were taking delivery of the asphalt from the factory of the Defendant, the Claimant did not disclose the destinations to which they were carrying the asphalt. They did not disclose or link the asphalt to any road construction or any project at all.
12. The Claimant did not discuss with the Defendant the length, distance or measurements or natural conditions of the road or any project so the Defendant was not in a position to advise the Claimant of the quantity of the asphalt that will be required for such project.
13. The Claimant determined the quantity to be bought itself and not based on any advise by the Defendant.
Evidence of those facts were led by the Appellant through the written Statement on Oath of DW1. The response of the Respondent is as stated in paragraph 1 of the Reply and Defence to the Counter-Claim. Therein, it was averred that:
“1 … The Claimant avers that they did not need to inform the Defendants about the destination and project at hand. Neither did they need to disclose the length, distance or measurements or natural conditions of the road. The Claimants bought enough quality of asphalt from the Defendants for the area they needed it for.”
On the whole, it is my finding from the pleadings and evidence on record that there is no evidence upon which I can infer that the Respondent made it known to the Appellant the particular purpose for which the asphalt was to be used. On that note, I cannot hold the Appellant liable in breach of any implied or express warranty or condition as to quality or fitness for any particular purpose.” Per TSAMMANI, JCA.