Owners, M.v Gongola Hope & Anor. V. Smurfit Cases Nigeria Ltd. & Anor (2007)
LAWGLOBAL HUB Lead Judgment Report
In the Federal High Court holden at Lagos and in suit No. FHC/121/90, by an amended statement of claim the plaintiffs’ claim against the defendants were as follows:-
“1. Delivery of all 41 reels of Kraftliner Board 150 GSM 2050 mm directly to the plaintiffs’ factory with all other consequential directions and/or either.
- Damages for fraud or fraudulent misrepresentation and/or negligence. And/or
- Payment of the sum of USD 71,446.94 plus interest at the rate of 8% from the 22nd of August, 1990 to the date of judgment and thereafter interest at the rate of 10% until date of payment.
- The sum of N697,066.81 being the amount specified items 3, 4, 5, 6, 7 and 8 or the particulars listed in paragraph 14 supra.
- Anticipated loss of profit on use of goods N2,000,000.00 (Two million Naira) if they had arrived and been processed.
- Further and or other reliefs as the court may deem fit.”
Pleadings were ordered, delivered and amended. Five witnesses testified for the plaintiffs and a number of documentary evidence were tendered. The defendants offered no evidence but rested their case on the evidence led by the plaintiffs. After the addresses of counsel, in his judgment delivered on the 12th day of February, 1997, the learned trial Judge refused the plaintiffs’ claims on the ground that the 1st plaintiff had no locus standi to file the suit because it had lost its right of suit to the 2nd plaintiff by appointing the 2nd plaintiff as its clearing agent for clearing the lost goods. The learned trial Judge also found that the 2nd plaintiff’s claims had become statute barred. He struck out the plaintiffs’ case. The plaintiffs felt unhappy with the situation and appealed to the Court of Appeal on 16 grounds of appeal. The Court of Appeal in its consideration of the appeal before it, in its judgment delivered on the 21st of January, 2002, held per Aderemi, JCA as he then was, which was concurred by Oguntade, JCA as he then was and Chukwuma-Eneh, JCA also as he then was:-
“In the final result and for all the reasons that I have given above, this appeal must be allowed and it is accordingly allowed. The ruling of the court below striking out the entire suit is hereby set aside. In its place is an order entering judgment in favour of the appellants in the following terms –
(a) US Dollar 60,087.07 (sixty thousand eighty seven dollars and seven cents)
(b) N 212,973.46 (Two hundred and twelve thousand nine hundred and seventy three naira forty six kobo only)
The judgment was entered in favour of the 1st plaintiff only against the defendants.
The defendants also felt unhappy with the decision of the Court of Appeal and have now appealed to this court on two grounds of appeal. In his brief for the defendants, the learned counsel stated that the appeal is only against the consequential orders and not against the decision allowing the appeal “per se, but on what appropriate orders should have been made having come to the decision that the case was wrongly struck out.”
The plaintiffs on 1/2/2002, filed an application before the Court of Appeal praying for the variation of the judgment entered on the 21/1/2002 in that “the judgment sum should include interest on the amount adjudged as proved at the rate of 8%, from 22/8/1990 until date of judgment on the 21/1/2002 and thereafter interest at the rate of 10%, until date of payment to 1st plaintiff:” and for also loss of profits. The defendants filed a counter-affidavit in opposition to the motion. In its consideration of the motion, the court below agreed that it made a mistake in not awarding the interest and the loss of profits as claimed and proved, but declined to vary its judgment since at the time of the ruling on the application the appeal had already been entered in the Supreme Court. That was why the plaintiffs also filed a notice of cross-appeal on the omission of the Court of Appeal to enter the full judgment in accordance with the amended statement of claim. Now in this judgment, the defendants are hereinafter referred to as the appellants or the cross-respondents as the case may be while the plaintiffs are referred to as the respondents or the cross-appellants. I shall first deal with the appeal as filed by the appellants.
In their notice of appeal, the appellants filed the following two grounds of appeal:-
“(1) The Court of Appeal erred in law in awarding damages in excess of the limitation imposed by the Bill of Lading
(i) The Bill of Lading exhibit A specifically incorporates the Hague Rules, which placed a limit on owners/appellants liability for cargo claims.
(ii) The Court of Appeal relied on the terms of the same Bill of Lading to come to its decision allowing the respondents’ appeal.
(iii) The court failed to take adequate advantage of the powers allowed it by virtue of section 16 of the Court of Appeal Act, 1976.
(2) The Court of Appeal erred in law and a miscarriage of justice was occasioned when it failed to adequately consider the defense of the appellants.
(i) The failure of the appellants to lead evidence should not prejudice the defenses available to it by law.
(ii) The Court of Appeal should have in the circumstances of the decision reached assumed the role of the trial court to consider the legal defenses in the pleadings along with the totality of the evidence provided. The appellants pleaded and raised legal defenses in counsel’s address at the trial court and which should have been considered.”
Before the examination of the issues distilled from the two grounds of appeal by both parties, it is convenient at this stage to set out the relevant facts for the determination of the appeal. The respondent’s claims against the appellants were in respect of losses and damages caused through the failure of the appellants to deliver the 41 reels of Kraftliner board 95m 2050 mm which the 1st appellant carried for reward by sea for and on behalf of the 1st respondent from the sea port of Paranagua for delivery to the 1st respondent in Lagos, Nigeria. The appellants failed to deliver the goods and gave no explanation why the goods were not delivered nor traced. The claims of the respondents against the appellants were in detinue and/or conversion and/or negligence and/or fraud or fraudulent misrepresentation for non-delivery of the goods. As mentioned above, the claim was for losses, damages, including loss of profits and interest. As mentioned above, the respondents called evidence in proof of their pleadings. The appellants however, did not lead any evidence in proof or support of their pleadings, but merely rested their defenses on the evidence led by the respondents. The Court or Appeal commented on the consequence of a party who fails to adduce evidence to substantiate its pleadings. As a matter of fact in paragraph 2 of the statement of defense, the appellants admitted paragraphs 5, 9, and 10 of the amended statement of claim. The consequence was that there were no issues joined on the liability of the appellants to the respondents. Also as mentioned above, the appeal herein is not “challenging any aspect of the facts and evidence as admitted before the trial court but seeks a review of the decision of the Court of Appeal when the court failed to be guided by the defenses of limitation of liability available to the appellants.” (see page 5 of the appellants’ brief)
Now, in his brief for the appellants the learned counsel has identified formulated and submitted two issues for the determination of the appeal thus:-
“1. What in the circumstances of the facts of the case should have been the orders/award of the Court of Appeal having held that the case or the respondents was wrongly struck out
- On a true construction of the contract between the parties as evidenced by exhibit A, the Bill of Lading, what is the measure of the limit of the appellants’ liabilities”
In my view, having regard to the two grounds of appeal, the complaint of the appellant is based on the issue whether the limitation of liability clause as provided by the Hague Rules as incorporated into the contract of carriage by the Bill of Lading, avails the appellants to limit their liability to 100 in Gold per package or unit. The issues formulated by the appellants do not really appear to be in consonance with the grounds of appeal especially issue No.1. See Captain Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76; Arowolo v. Akapo (2003) 8 NWLR (Pt. 823) 451,382; Archbishop Jatall v. Alhaji Ahmed & 4 Others (2003) 1 SCNJ 382; (2003) 4 NWLR (Pt. 811) 498, Falola v. Union Bank (2005) 2 SC (Pt. 11) 62, (2005) 7 NWLR (Pt. 924) 405; Dada v. Dosumu (2006) Vol. 12 MJSC 115; (2006) 18 NWLR (Pt.1010) 134. Issues for determination should be distilled from the grounds or ground of appeal and must naturally flow from the essential complaint in the ground or grounds of appeal. As mentioned above the fundamental complaint of the appellants in this appeal is the failure of the court below to apply the limitation of liability under the Hague Rules which will reduce the claims of the respondents.
There is no doubt that the Court of Appeal did not consider the limitation of liability as provided for under Hague Rules which is indisputably incorporated in the instant contract by the Bill of Lading. The only issues presented to the Court of Appeal for the determination of the appeal by the then appellants (respondents herein) were:-
“(i) Whether on the facts and the circumstances of this case, the 1st appellant could rightly be held to have lost its right of suit to 2nd appellant.
(ii) Whether the appellants’ case received fair and/or adequate consideration of the learned trial Judge.
(iii) Whether the trial Judge is justified in deciding the case only on technicality without making any findings on the merits.
(iv) Whether the learned trial Judge is right in finding that the 2nd plaintiff/appellant’s action is statute-barred.”
For their part, the respondents to the aforesaid appeal, the appellants herein, raised two issues for the determination of the appeal:-
(i) Whether either of the appellants as plaintiffs had proved within the relevant period for the purposes of the time limitation restrictions that they were endorsees and party entitled to property covered by the Bill of Lading.
(ii) Whether the trial court was right to determine the case solely on a legal point on a consideration of the terms of the applicable law.”
It can be seen plainly that the issue as to the limitation of liability to 100 gold per package or unit was not an issue for the determination of the matters placed before the Court of Appeal. The issues of defense open to the appellants were not raised in the Court of appeal and were not accordingly decided upon. The issue in the main was whether the trial Judge, having regard to the uncontradicted evidence adduced by the respondents, was not in error to have struck out their claims and if the decision was found to be erroneous. The Court of Appeal should enter judgment for the respondents in accordance with their claims as contained in the amended statement of claim.
Thus the issue of the defense of the limitation of Liability was not raised in the Court of Appeal. It is now a fresh issue. A matter not raised at and decided by the Court of Appeal may not ordinarily be raised in the Supreme Court for the first time without leave unless it is such matter of fundamental importance such as the issue of jurisdiction. Thus jurisdictional issue because of the nature of its fundamental importance to the competence of adjudication is one of the very few exceptions where fresh issues may be raised without leave. Issue of jurisdiction may be raised at any stage of the proceedings even at the Supreme Court and even by the court suo motu, leave may not be necessary because without the judicial competence to adjudicate everything done is a nullity. The general rule is that fresh issues can only be raised with leave.I have above in this judgment recited the issues submitted to the Court of Appeal for the determination of the appeal before it together with the prayer to enter judgment as per the amended statement of claim. In my view the parties are bound by the issues they formulated in their briefs of argument. So too, the Court of Appeal. The Court of Appeal had no jurisdiction to go outside the issues legitimately submitted to it for the determination of the appeal. See Ojoh v. Kamalu (2005) 24 NSCQR (Vol. 24) page 256: (2005) 18 NWLR (Pt. 958) 523.There is no doubt that the appellants in the court of trial raised the issue of limitation of liability as provided for under the Hague Rules as an alternative defense. But it is good law, that pleadings, as stated by Tobi, J.S.C in Ojoh v. Kamalu supra:-
” … not being human beings, have no mouth to speak in court and so they speak through witnesses. If witnesses do not mandate them in court, they remain moribund, if not dead at all times and for all times, to the procedural disadvantage of the owner, in this con the appellant.”
In the instant case, the appellants, led no shred of evidence in support of their entire pleadings and I am of the view that under the circumstances the Court of Appeal had no duty or authority to resurrect the pleadings and to find a defense for the appellants to limit their liability, significantly when such a defense was even never referred to the court.
In any event, this court will not generally allow a party on appeal to raise a question or an issue not raised in the Court of Appeal or to grant leave to argue fresh grounds not canvassed in the Court of Appeal except where the new grounds involve substantial points of law substantive or procedural which need to be allowed in order to prevent an obvious miscarriage of justice. Even in such a case, there must be the evidence adduced by the party relying on the new issue. See Eze v. A.-G., Rivers State (2001) 8 NSCQR 537; (2001) 18 NWLR (Pt. 746) 524. Invariably the court will only allow a fresh issue to be argued on appeal where the issue is relevant and no further evidence is necessary. In any event, it is patently clear that no leave was sought and obtained to canvas this issue on appeal and the appellants led no evidence to support the defense.
As mentioned above, the Court of Appeal considered the issues submitted to it for the determination of the appeal. It considered all the evidence led before the trial court before it reached its decision to enter judgment. I am also of the view that the appellants having admitted the loss of the goods without any explanation and without disproving that they were negligent or fraudulent cannot avail themselves on the defense of the limitation of liability. From the facts, the appellants were guilty of a fundamental breach of the contract and they could not therefore rely on their own wrong doing to limit their liability. In any event, they led no evidence whatsoever to support their entitlement to the defense.
When a contract of carriage is breached in such a manner and when no explanation is offered as to how the loss occurred and where the shipper pleads and proves fraud, misrepresentation and negligence the Hague Rules and the per package limitation will not apply. See The Pembroke (1993) Lloyds Rep. 230, The Chanda (1989) 2 Lloyds Rep. 494. I accordingly discountenance the two issues formulated by the appellants and consequently strike out the appeal as incompetent.
The cross-appeal is concerned with the claim for damages for loss of profits and interest. As mentioned at the beginning of the judgment, the Court of Appeal admitted that they were wrong in refusing to grant the claims, but declined to vary the judgment because the appeal was already entered at this court. The cross-appellants submit one issue for the determination of the cross-appeal which reads:
“Whether the respondents cross-appellants are entitled to interests on their claims also whether they are entitled to loss of profits, which was proved in evidence at the trial and not contradicted, as well as general damages.”
The learned counsel for the cross-respondents on the other hand, has submitted the following issues for the determination of the cross-appeal.
“1. Whether the reliefs sought by the cross-appellants in this appeal is available under the “slip rule”, or by a “variation”, of the judgment of the Court of Appeal as stated on the notice of appeal.
- Whether the grounds and particulars supporting the cross-appellants’ notice of appeal should not be dismissed for relying on the decision not appealed, the ruling, to support the complaints against the decision appealed, the judgment.
- Whether the Appeal Court did not take full account and/ or was not fully mindful of the totality of the cross-appellants’ claims as plaintiffs in the trial court in the eventual decision that it reached on the appeal.”
The issues formulated by the cross-respondents as recited above do not flow from the grounds of the cross-appeal. It is settled law that issues for determination must relate or tie to the grounds of appeal and where such issues do not tally with the grounds of appeal, they become incompetent and are deemed non-issues and should be ignored and struck out.
It must be emphasized that even a respondent to an appeal is not permitted to formulate any issues not arising from or related to the grounds of the cross-appeal and therefore a respondent to an appeal such as in this case must be careful in formulating issues for the determination of the cross-appeal to formulate issues that are in consonance with the grounds of the cross appeal, otherwise, the issues not covered by grounds of appeal will be incompetent and struck out. See Ojegbe v. Omatsone (1999) 6 NWLR (Pt. 608) 591.
It is also the law that issues for determination failing to flow from the judgment appealed against cannot be competent. See Western Steel Works Ltd. (No.2) v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt.49) 284 at 304; Onyesoh v. Nnebedun (1992) 3 NWLR (Pt. 229) 315, Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275. Issues for determination in any appeal must not only be related to or arise not only from the grounds of appeal filed by the appellant or cross-appellant but must be traced to the judgment or decision being appealed against.
In the present case, as none of the issues formulated by the cross-respondents addressed the real issue in this appeal to wit whether the Court of Appeal was right in omitting to enter judgment in all the matters proved as found by the court and which was contained in the amended statement of claim. The issues even appear to me to be in the nature of preliminary objection to the competence of the cross-appeal. It is not permitted to file a notice of preliminary objection in this manner. I discountenance the issues, filed by the cross-respondents. Now in its judgment, the Court of Appeal stated as pointed out before, that the respondents as plaintiffs called evidence in proof of all the averments contained in the amended statement of claim and the appellants failed or refused to call any evidence in the defense of the claims or proof or support of the statement of defense, judgment should be entered in favour of the respondents. In their notice of appeal the respondents as the appellants prayed the court to enter judgment as per the amended statement of claim. But instead of doing that the Court of Appeal merely entered judgment on two items only without mentioning the other claims and without assigning any reasons for failure to make the award. In the present appeal, the cross-respondents have no dispute with the evidence adduced by the cross-appellants. In my view, the Court of Appeal having held that the respondents had proved all their claims, the court ought to have awarded the claims as pleaded and proved. I accordingly allow the cross-appeal and vary the judgment of the Court of Appeal to include the interest as claimed and the anticipated profit as contained in paragraph 15 of the amended statement of claim. In the result the appeal is struck out and the cross-appeal is allowed. The respondents/cross appellants are entitled to costs assessed at N10,000.00.