Disputes often arise in business transactions relating to sale of items. A recurring dispute is the buyer’s complaint that a product it has purchased is not fit for the purpose for which it was bought.


In that case, Samoba Nigeria Limited (Samoba) purchased 1,095.92 tons of asphalt from Blackstone Crushing Company Limited (Blackstone). The asphalt was inspected by staff of Samoba and payment was made to Blackstone. Samoba intended to use the asphalt for road construction but did not communicate this intention to Blackstone. Subsequently, according to Samoba, it used the asphalt for road construction but a portion of the road failed due to the poor quality of the asphalt.

Blackstone, on its part, contended that the asphalt it supplied to Samoba was of good quality and the failure of a part of the road must have been due to the negligence of Samoba’s engineers. Samoba instituted an action in the High Court of Oyo State seeking damages for breach of contract as well as aggravated damages. Blackstone brought a counterclaim for libel.

During trial, a written court Order was issued at the request of Samoba for the purpose of compelling the Permanent Secretary of the Osun State Ministry of Works (the Ministry) to provide the documented result of two tests conducted on samples of the asphalt sent to the Ministry for analysis and to give evidence (a subpoena duces tecum ad testificandum). The subpoenaed witness tendered two test results which impugned the quality of the asphalt.

The trial Court however misdescribed the subpoena as one for documents only and on that basis admitted the documents containing the test results but refused to allow Blackstone cross examine that witness.

 The trial Court subsequently gave judgment in favour of Samoba.

In the appeal filed by Blackstone, two of the major issues were whether the test results were properly admitted in evidence by the lower court and whether Blackstone was in breach of any implied or express warranty as to quality or fitness of the asphalt for any particular purpose.

The Court of Appeal in resolving these issues, highlighted the difference between a subpoena used to compel the production of documents alone and the one which combined the production of documents with giving of oral evidence. In each of these cases, the treatment of the documents brought to court by the witness is different.

Had the subpoena in this case been one for documents alone, the responsibility of the witness would have ended at his delivery of the documents to the court and it would have been for Samoba to prove the documents by tendering them through another witness who could then be cross examined. The High Court instead, had admitted the documents directly.

More importantly, the subpoena in this case was a combined one, so, while the documents could be admitted directly through the witness, the High Court ought to have allowed Blackstone cross examine that witness after admitting the documents in evidence. That Court was therefore wrong.

With respect to Samoba’s claim for breach of contract, the Court of Appeal noted that the transaction between the parties was one for the sale of goods, to which the Sale of Goods Law of Oyo State applied. By virtue of that law, 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 exist, the buyer must have either expressly or implicitly revealed to the seller, the particular purpose for which the goods were purchased.

 The Court of Appeal agreed with Blackstone’s position that in view of the fact that Samoba identified, paid for and took delivery of the asphalt, without specifying the particular purpose for which the asphalt was to be used, there was no implied or express warranty or condition as to quality or fitness for any particular purpose and there was no breach.

The Court of Appeal, for this among other reasons, allowed the appeal, set aside the Judgment of the lower court and awarded costs against Samoba and in favour of Blackstone.


TAYO OYETIBO LP represented the Appellant in this appeal.