Baliol Nigeria Ltd Vs Navcon Nigeria Ltd (1990)

LawGlobal-Hub Lead Judgment Report

I. F. OGBUAGU

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 0f 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 Respondent, 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 vagueness, 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 (J 987) 2 NWL1(pt.55 179; (1987)4. SCNJ.l10 and Alli & anor. v. Chie[ Alesinloye & 8 ors2OOO) 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 Organization Ltd., v University. Of Calabar (2004) 4 SCN.! lfJ1 (Ii{133 and Mojekvvu 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 71h October, 1994. (iii) Were the Learned Justices of the Court of Appeal right in holding that had they found that there was a binding  agreement between the parties, they would have awarded to the Plaintiff (now Appellant) only -N1, 409, 080.00″.

I note that it is stated in the said Brief of Argument that the above issues are formu1ated from grounds 1, 2 and 3 of the Grounds of Appeal. When this Appeal came up for hearing on 5th February, 2010, both learned counsel for the parties, adopted their respective Brief. While the leading learned counsel for the Appellant – Ajisegiri, Esqr., urged the Court to allow the appeal, Achuku, Esqr., – the learned counsel for the Respondent, urged the Court to dismiss the appeal in its entirety. Judgment was thereafter reserved till to-day.

The facts briefly stated are that the Appellant had sued the Respondent in Suit No. LD/130/95 at the Lagos High Court claiming the sum of N9,000.000.00 (Nine Million Naira) as damages for breach of contract or as its anticipated profit under an Agreement dated 7th October, 1994 made between the Appellant and the Respondent and alternatively for injunction and specific performance. The parties filed and exchanged pleadings. After the hearing, the learned trial Judge -Fafiade, J. found in favour of the Appellant. Dissatisfied, the Respondent appealed to the court below which allowed the appeal, set aside the said Judgment of the trial court and dismissed the Appellant’s suit, hence the instant appeal.

The Appellant demanded for an upward review due to the downward slide of the Naira and wrote letters to this effect. Exhibit B is the Agreement, which speaks for itself. The Respondent contend that since there was no agreement, there was no enforceable contract. I note that the learned trial Judge held that the Agreement, was irrevocable. Exhibit B is the written contract. I see no document whatsoever in the Records evidencing the alleged or subsequent oral agreement ever produced by the Respondent.

It may be necessary for me to state that from the Records, the Appellant, had obtained a Local Purchase Order (LPO) from Messrs PZ Industries Ltd. (hereinafter called “the Company”) to supply to it, two thousand (2000) Metric Tones of Sodium Sulphate at the cost of -N43, 500.00 (forty-three Million five hundred thousand Naira), The Appellant approached the Respondent to execute the said LPG by importing the said Chemicals and supply them to the said Company.

This approach eventually led or brought about the said Agreement of Till October, 1994 which was, said to be irrevocable.’ It is noted by me that the Company, refused the Appellant’s demand for an upward review of the LPO’s price value to accommodate the increase in the landing or landed cost of the said chemicals due to the said downward slide in the value of the Naira to the U.S. Dollars.

The Appellant, eventually or subsequently, sued the Respondent claiming as above stated. The anticipated profit of N9, 000.00 is alleged or claimed by the Appellant, as the sum it would have earned had the aforesaid LPO been executed still insisting, that the said Agreement was irrevocable. The Appellant submitted the landing/landed cost of the said chemicals, which eventually, came to the sum of N21, 045, 10 as against the sum of N17, 250.00 which the trial court upheld. The court below – per Oguntade, JCA (as he then was before becoming a JSC but now retired) at pages 201, 201 and 204 made some findings of fact and holdings. It seems to me the said Agreement between the parties, cannot and could not be described as one covered by Sales of Goods. In fact, there are two Agreements in this matter. One being the one between the parties to this appeal dated 7TH October 1994 and the other, being the one between the Appellant and the Company evidenced by the LPO No. 607451 dated 20th September, 1994. In the Agreement dated 7TH October 1994, there was a binding agreement or contract as regards the price of the chemicals. In the instant case, I, with respect, do not agree with the Respondent in its submission in its Brief that since there was no agreement on the price to be paid for the Sodium Sulphate or the price the Respondent could be held bound to and liable, that there was not and there could not be any binding contract.

The Agreement is clearly stated to be “irrevocable”, as that position had not been altered in writing and therefore, there is/was a final and binding contract in respect of which, the Respondent, was clearly in breach of as rightly found and held by the trial court. The court below stated at page 204 of the Records, inter alia, as follows: “In contracts for sale of goods’ it is of the utmost importance that partiesto the contract come to an agreement as to the price of the goods being sold ln this cause there was no such agreement.