G.n. Nwaolisah V. Paschal Nwabufoh (2011)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C

By a notice of Appeal filed at the Supreme Court of Nigeria Registry on the 24tn day of June, 2003, the appellant G.N.N. Nwaolisah appealed against part of the judgment of the Court of Appeal Enugu delivered on the 15th of May 2003.

In the High court of Anambra state sitting at Onitsha, G.N. Nwaolisah, a businessman trading under the name and style of G.B. VITTALIS CO. (NIG.) as plaintiff, in paragraph 25 of his amended statement of claim sued the defendant now appellant before this court, paschal Nwabufoh, a clearing agent operating under the name and style of Paskodi Maritime Agencies claiming as follows:-

(i) The sum of N57,000.00 (fifty seven thousand Naira) as special damages being money had and received by the defendant from the plaintiff for a consideration that has wholly failed.

(ii) The sum of $172,200 U.S. dollars as special damages C.I.F. value of the goods shipped from Italy.

(iii) Interest on the above sum of money at the rate of 25% (twenty five percent) from 17th April 1996 up till date of judgment

(iv) General Damages as may be assessed by the court.

The facts of the case in brief are that in August 1983 G.N. Nwaolisah, a businessman traveled to Mezzago, a town in Italy and placed order for 730 cartons of neoprene glue mastic 66, which is a variety of adhesive gum. The goods were shipped in a 20 feet container to Nigeria on board the vessel “SS Irmas Dilmas. As the time the appellant placed order for the items and shipped them to Nigeria Neoprene was not affected by any import prohibition. In July 1984 when the goods arrived in Nigeria via Port Harcourt wharf, Neoprene glue has come under import license by operation of Law. The items could not be cleared without obtaining import license to that effect. The goods arrived in Nigeria in July 1984. The appellant engaged the services of Mr. John Okorie operating under the name and style of Jomo Agencies (Nig) to clear the goods. His services included securing an import license for the purpose. The agreement between the parties was that clearing of the items would be done within one month. The clearing agent failed to keep to his promise, and the appellant terminated the agreement and sued him at Onitsha High Court for breach of contract. The goods were thereafter placed under seizure by the Department of customs and excuse in Port Harcourt. He was introduced to and engaged the service of the respondent in October 1984. He demanded for a sum of 25,000 naira and gave an oral undertaking to clear the container within one month from August 1984 the understanding then was that these fees included the cost of procuring a license for clearing the goods. He not only failed to keep to his promise but he demanded for more money while the appellant gave him the necessary documents for clearing the goods. The respondent not only failed to clear the container he also refused to repay the sum of money he collected for his aborted promise.

The respondent did not deny the contract between the parties or that his charges did not include the contractual obligation to procure the import licence. The Respondent claimed to have procured a licence for N10, 000 but failed to use it to clear the container. The appellant placed the value of the goods at $172,200.00 (us Dollars) and the Respondent quoted the value as $4,860.84, both amounts are supported by certificate of value issued by the vendor of the adhesive gum in Italy. The parties supported their respective stand with documents like sale Invoice original Bill of Lading, Marine certificate of Insurance, Letter of Arrival of container in Nigeria, Letter from Respondent to appellant dated 7th April 1986 requesting for documents to facilitate clearing of the goods and letter from Bassi Marchini & Co Italy demanding for payment of the goods. The appellant consequently received a letter dated the 2nd of February 1988 from Nigeria ports Authority informing him that his container was declared as over time cargo and sold as lot 119 in the 1985/86 overtime cargo sales. The appellant sued the respondent for breach of the alleged agreement entered to clear the container.

In the judgment of the trial court delivered on the 26th of September 1977 the learned trial Judge dismissed the suit with costs of N5,000 assessed in favour of the respondent. Being aggrieved by the outcome of the suit, in the High court Anambra state the appellant filed an appeal in the Court of Appeal, Enugu.

Three issues were formulated for determination in the appeal at the lower court. In the judgment of that court delivered on the 13th of May 2003, resolved two issues in favour of the appellant but on the third issue which the lower court rated as touching upon a substantive matter, the court found same against the appellant. The appellant made a further appeal to this court on that portion of the judgment. Parties exchanged briefs. At the hearing of this appeal on the 5th of April 2011, the appellant adopted and relied on the appellant’s brief filed on 22/1/11 and the appellants reply brief filed on 28/3/33. The only issue distilled for determination in this appeal reads:

“Whether the learned justices of the court below were right in affirming the decision of the trial court that the parties are in pari delicto with regards to who breached the contract.”

The Respondent raised a similar issue in the Respondent’s brief deemed filed on the 2nd of February 2011.

The Appellant submitted in respect of this issue by recapitulating the judicial and evidential rules of the trial court’s decision that parties are in pari delicto on the issue of breach of the contract. The trial court concluded that the crucial factor in the contract between parties were that the respondent would clear the container at the Port Harcourt wharf and deliver same at Onitsha. Their agreement was however predicated on the defendant obtaining the requisite import licence and his fees covered the procurement of the licence. The appellant trusted and was assured by the respondent that the task would be accomplished within one month. The appellant referred to the finding of the learned trial Judge that the respondent testified as pleaded in paragraph 11 of the Amended statement of Defence that he purchased an import licence for N10,000 to the knowledge of the plaintiff but the import licence was not tendered in evidence, and neither did he use it to clear the appellants goods. The trial court concluded that the appellant was equally at fault because he failed to furnish the respondent with certain documents necessary to procure the licence. The bone of contention of the appellant was that the learned trial Judge had once ruled that the evidence was not specifically pleaded by either party, and was therefore expunged from the record. The appellant went on to explain the stand of the Court of Appeal which came to the conclusion that any evidence tendered and rejected or withdrawn and abandoned or ruled to be irrelevant on the ground that it is not pleaded ought not to be used to ground a case for a party for it would amount to using or relying on a non-existent or void fact to buttress or ground a decision. The trial court cannot be allowed to overrule itself based on facts rejected. The appellant is of the view that having reversed the trial court in that manner, the lower court ought to have answered issue three in the negative and resolve same in favour of the appellant. In effect the conclusion of the appellant is that this appeal be allowed in that the learned judge based his conclusion that the parties are in pari delicto on evidence which he had expunged in an interlocutory ruling before his final judgment. The lower court was also of the impression that the trial court could not in the final judgment make use of evidence earlier expunged during the trial. The court below was therefore wrong to hold that there was evidence of frustration where none were pleaded and proved and when the trial court did not so find.