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  • Remm Oil Services Ltd. vs. Endwell Trading Co. Ltd.
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  • 2003-04-28
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Remm Oil Services Ltd. vs. Endwell Trading Co. Ltd.

REMM OIL SERVICES LIMITED

V

ENDWELL TRADING COMPANY LTD.

COURT OF APPEAL

( PORT HARCOURT DIVISION )

JAMES OGENYI OGEBE, JCA ( Presided and Read the Lead Judgment )

SYLVANUS ADIEWERE NSOFOR, JCA

MICHAEL EYARUOMA AKPIROROH, JCA

CA/PH/282/98

TUESDAY, 9TH JULY, 2002

CONTRACT - Breach of contract - Plaintiff alleging - Onus on - How discharged - Whether plaintiff can rely on the weakness of the defence

CONTRACT - Parties before the court - Whether court can make contract for

CONTRACT - Terms of contract - Where a certain act is agreed to be performed within one month of contract - Whether time is of essence

COURT - Parties before the court - Whether court can make contract for

COURT - Trial court - Bindingness of pleadings and evidence thereon

DAMAGES - Special damages - When will not be awarded

EVIDENCE - Hearsay evidence - Preclusion of by section 7(b) of Evidence Act

EVIDENCE - Proof - Onus of proof of plaintiff’s claim - On whom lies

PLEADINGS - Pleadings and evidence - Bindingness of on trial court

Issue:

Whether the trial court was right in holding that the appellant was liable to the respondent in its claim for special and general damages for breach of contract.

Facts:

Respondent company as plaintiff filed this action claiming against the appellant as defendant, specific performance of contract, general damages etc. Plaintiff alleged from its statement of claim and evidence that on 23rd February, 1989 one Mr. P. I. E. Rogers entered into a contract negotiation on its behalf with Mr. John Cameron representing the defendant. By that agreement, the plaintiff agreed to purchase from the defendant some marked scrap iron lying in the defendant’s business premises at Iwofe jetty, Rumuolumei village in Obio/Akpor Local Government of Rivers State for the sum of N65,000.00. The parties agreed that the scrap iron be evacuated within four weeks from the due date of the contract which was 28th of February, 1989 as time was of the essence of the contract.

Respondent evacuated most of the scrap with only about 5% left when the Nigerian Ports Authority closed its jetty on 18th April, 1989.

At the conclusion of hearing, the trial court gave judgment in favour of the plaintiff. Dissatisfied, defendant appealed to the Court of Appeal.