Ezeafulukwe Vs John Holt Limited (1996)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
This is an appeal from the judgment of the Court of Appeal, Port-Harcourt Division, in which the lower court set aside the judgment of Aba High Court and dismissed the claim filed by the appellant. The appellant is Mr. Leonard Ezeafulukwe and he filed this action against John Holt Limited.
In the statement of claim the appellant averred that he entered into a contract agreement with John Holt Limited to purchase tinned geisha mackerel fish in tomato sauce. In the agreement, the appellant purchased 650 cartons of small size geisha and 160 cartons of large size geisha, all valued at N12,790.00. In his pleadings, the appellant further averred that on reaching Kumba, in the Republic of Cameroon, where he had his main store, he discovered that 577 cartons of the tinned fish which he purchased from the respondent were rotten and unmerchantable.
The appellant returned to Nigeria and requested for the return of the purchase money for the 577 cartons which were certified bad. When the respondent turned down his request and refused to refund his money he filed an action in Aba High Court and claimed N50,000.00 being special and general damages for breach of contract. The claim as pleaded in paragraph 17 of the statement of claim is as follows:
“general and special damages for breach of contract and warranty or in the alternative for total failure of consideration in respect of 577 cartons of small size geisha as follows:-
(a) Cost of 577 cartons of tinned geisha mackerel at the rate of N15.00 per carton of 100 tins = N8,655.00.
(b) Loss of profit being the difference between the cost price and selling price of N27.50 per carton = N7,212.50.
(c) General Damages = N34,132.50
Total = N50,000.00”
The defendant denied the claim. Pleadings were called and delivered and at the end of the hearing the learned trial judge granted items 17(a) and 17(b) of the plaintiff’s claim.
Dissatisfied with the decision of the trial court, the respondent filed an appeal before the Court of Appeal. In a well considered judgment, the Court of Appeal allowed the Appeal and dismissed the claim of the appellant. It is against the decision of the Court of Appeal that the appellant came before this court on five grounds of appeal. The following five issues have been formulated by learned counsel for the appellant for the determination of the appeal:
“(i) Whether the Court of appeal ought to have reversed the finding of fact of the learned trial Judge that it was the plaintiff with whom the Defendant contracted, when the said finding of fact has not been shown to be perverse or manifestly unreasonable.
(ii) Whether the contract which was entered into on the 5th of July 1979 and goods appropriated from a large stock on 12th July, 1979 was or was not a contract of sale of unascertained goods, and a fortiori a sale of goods by description.
(iii) Whether the Court of Appeal was correct when it held that the Appellant made his selection and can therefore not rely on the judgment of the Respondent.
(iv) Whether Respondent can rely on a clause in its sales invoice which states that “received in good condition all goods shown on this invoice No……” to exempt itself from liability, even when the goods were seen by the Appellant seven days after signing the sales Invoice.
(v) Whether the Court of Appeal was correct when by speculating on how the fish were conveyed to and stacked in Cameroon, it held that the finding of fact of the learned trial judge that it was the same fish that was destroyed in the Cameroons is perverse or manifestly unreasonable”.
The five issues raised by the respondent, although couched in different terminologies, are to all intents and purposes similar to the issues formulated by the appellant.
The main issue in this appeal which alone may determine the fate of the appeal is issue I. It is based on privity of contract and the competency of the appellant to sue in this matter. The general rule, known as the doctrine of privity of contract is that only a party to a contract may sue or be sued under that contract. Before I proceed let me consider the facts as given by the parties in the evidence.
In the pleadings the appellant averred in paragraph 4 of the Statement of claim as follows:
“By contract entered into at Aba on or about the 5th day of July, 1979, the defendant agreed to sell to the plaintiff tinned mackerel fish in tomato sauce made up as follows:-
(a) 650 cartons of 100 tins per carton of small size geisha at N 15.00 per carton N9,750.00
(b) 160 cartons of 48 tins per carton of large size geisha at N 19.00 per carton N3.040.00
Total N 12.790.00
In paragraph 5 of the Statement of defence respondent denied entering into any agreement with the appellant for the supply of tinned mackerel fish. The respondent denied categorically that they sold any goods to the appellant. In paragraph 6 of the statement of defence respondent averred that the only person who purchased tinned mackerel fish from the company was one Mr. Ezeafulukwe or Mich. Ezeafulukwe but NOT the appellant. Also in paragraph 20 of the Statement of defence the respondent pleaded that it would contend at the trial that the appellant being a stranger to any alleged contract between the respondent and Mich. or M. Ezeafulukwe cannot derive any benefit or liability from the contract.
In view of these averments it is clear that the appellant had been put on notice on the issue of identity and therefore privity of contract between him and the respondent. Since the appellants name which was given in the writ is Leonard Ezeafulukwe it is incumbent upon him to prove before the trial court that he and M. Ezeafulukwe or Mich. Ezeafulukwe are one and the same person. In the course of his testimony before the trial court appellant was cross-examined thus:
“Put: “You are not Mike Ezeafulukwe who bought the goods from the defendants. ”
Ans: “With the question of “Mike Ezeafulukwe” which they wrote first, John Holt knows why they put “M” and got me confused by saying that it does not matter. This will be confirmed by the Venture Manager”.
The Venture Manager was not called to give evidence. However one Mr. Vincent Okonkwo testified for the defence and he told the trial court that he was a manager of the respondent. In his evidence, he said that he knew one Mike Ezeafulukwe who once came to John Holt and purchased some quantities of geisha. He explained that he had seen the appellant only in the court when the appellant came to testify. He said he did not know him before. In his address, counsel for the respondent submitted that the appellant was a stranger to the contract between the respondent and Mike Ezeafulukwe. As such the appellant cannot maintain an action against the respondent based on the contract of purchase of geisha tinned fish. Counsel further submitted that Mr. Leonard Ezeafulukwe did not establish any relationship between himself and Mike Ezeafulukwe.
In his judgment, learned trial judge considered the issue of identify of the appellant and concluded that he was satisfied that it was the appellant with whom the respondent contracted on 5th July, 1979 in Aba for the purchase and sale of the fish in both exhibits 1 and 5.
The Court of Appeal dealt with this issue when it considered the appeal filed by the respondent against the judgment of the trial High Court and in a considered finding the Court resolved as follows:
“Having admitted that he the plaintiff signed his name as Mich Ezeafulukwe when he is not, it would have been obvious that the plaintiff on record was at least an impersonator or impostor. I therefore reject the submission of Chief Onyiuke when he said:
“Consequently the fact that the plaintiff signed as Mich Ezeafulukwe to avoid inconsistency on the face of the cash sales Invoice/Sale Invoice/Sale Order which had already been headed M. Ezeafulukwe becomes immaterial vis-a-vis the effect of the contract”.
I am sure if “Mich” is the first name of the respondent, there could have been no answer to this submission. As pointed out already “M” does not represent “Mich” alone. In fact respondent ought to have been re-examined why he signed “Mich”. On the other hand he was specifically cross-examined about his identity and the names “Mich Ezeafulukwe”. I also reject the submission that the discrepancy can be likened to a misnormer”.
The issue of identity of the appellant had to be resolved by the learned trial judge since the defence had put up a strong case questioning the competency of the appellant to sue in this matter. The appellant mentioned one Mr. Onunekwu, the Venture Manager, as the person who sold the tinned fish to him. He said that Mr. Onunekwu would confirm to the court that when he saw his name written with initial “M” he raised objection. But he was told not to worry because the same was on cash basis and that he could collect the goods and go away if he paid cash. The appellant however failed to call Mr. Onunekwu to testify on this vital point.
The learned trial judge, without resolving the confusion between the names “Mich” and Leonard, concluded in his judgment that it was the appellant with whom the respondent company contracted for the purchase of the tinned geisha fish. The Court of Appeal found that a lot had been said about the identity and competency of the appellant that the onus was on him to establish that he was competent to sue as plaintiff and claim against the respondent. See Quo Vadis Hotels v. Commissioner (1973) 6 S.C. 71. It is quite evident that the learned trial judge had not evaluated the evidence adduced before him before he inferred that the appellant was the one to whom the respondent sold the tinned geisha fish. Having failed to evaluate the facts in the evidence properly it is open to Court of Appeal to interfere and do the evaluation. In the case of Kayode Okuoja v. O.Ishola (1982) 7 S.C. 314 at 350 this court held:
“if the learned trial judge has drawn the wrong inferences from the primary facts found, then, the Court of Appeal is in a good position as the court of first instance, See also Brantuo v. Poko (1938) 4. W.A.C.A. 210”.
I therefore agree with the respondent’s counsel that the appellant had not established through evidence that he and “Mich” or “M” Ezeafulukwe were one and same person. The Court of Appeal in this regard is right in its decision that the appellant had failed to establish his competency to sue as plaintiff in this matter. Issue I is therefore resolved in favour of the respondent.
Issue I is based on competency to sue. Since I agree that the appellant is not competent to sue in respect of the tinned geisha fish against the respondent any further decision in this appeal shall be a mere academic exercise. Where a party is declared incompetent to sue his claim is not justiciable and any decision made in respect of that claim is null and void. This decision has therefore disposed of this appeal. It is accordingly dismissed. I affirm the judgment of the Court of Appeal. The respondent is entitled to the costs of this appeal which I assess at N1,000.00.
Other Citation: (1996) LCN/2746(SC)
