Baliol Nigeria Ltd V Navcon Nigeria Ltd (2010)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, JSC.

This is an appeal against the Judgment of the Court of Appeal, Lagos Division (hereinafter called “the court below”) delivered on 17th December, 2002 allowing the appeal of the Respondent and setting aside, the Judgment of the Lagos State High Court delivered on 26th October, 2000 – per Fafiade, J. and dismissing the Suit filed by the Plaintiff/Appellant.

Dissatisfied with the said Judgment, the Appellant has appealed to this Court on four (4) grounds of appeal with the leave of this Court. It has formulated four (4) issues for determination, namely;

“( 1) Whether the Court of Appeal was correct in its view that there was no valid contract between the

Plaintiff/Appellant and the Defendant/Respondent for the supply of Sodium Sulphate in spite of the evidence on the record before it.

(2) Whether it was right for the Court of Appeal to hold that the contract between the Appellant and the Respondents which was expressly referred to be an “Irrevocable Agreement”, was a Sale of Goods Agreement.

(3) Whether the Court of Appeal in coming to its decision, which is the subject matter of this appeal, did not re-write the agreement of the parties contrary to established principles of law.

(4) Whether the vagness, omission or mistake of the learned trial judge to make a specific monetary award at the end of her judgment in favour of the Plaintiff/Appellant was such a grave error of law which occasioned a miscarriage of justice as to render the whole judgment of the trial court a nullity or was it no more than a mere irregularity which the Court of Appeal could have cured in the interest of justice”.

I note as rightly stated in paragraph 5.0 of the Respondent’s Brief at page 7 that it is not stated in the Brief under which ground or grounds of Appeal the above issues are distilled from. It is now firmly settled in a

plethora of decided authorities by this Court that any issue or issues which is or are not formulated from a ground of appeal, is incompetent and must be ignored or discountenanced and struck out.See the cases

of Management Enterprises v. Olusanya (1987) 2 NWLR (Pt.55) 179; (1987) 4 SCNJ 110 and Alli & anor. v. Chief Alesinloye & 8 ors. (2000) 6 NWLR (Pt.660) 177 @ 212; (2000) 4 SCNJ 264. In other words, the Court lacks the power to deal with an issue or issues not formulated or distilled from any ground of appeal. See the cases of Kraus Thompson Organisation Ltd v. University of Calabar (2004) 4 SCNJ 101 @ 133 and Mojekwu v. Mrs. Iwuchukwu (2004) 4 SCNJ 180.

On its part the Respondent has formulated three (3) issues for determination, namely,

“(i) Was the agreement between the Appellant and the Respondent a Sale of Good Agreement.

(ii) Were the Learned Justices of Court of Appeal (sic) right in holding that paragraph 1 of the Amended Statement of Defence did not constitute an admission of the irrevocability of the agreement of 7th October, 1994.