Paul Edem V. Canon Balls Ltd. & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

S.A. AKINTAN, J.S.C.

The respondents, as plaintiffs, commenced this action against the appellant, as defendant, at Calabar High Court in Cross River State. Their claim, filed as suit No. C/446/94, was “for a return, refund, restitution or repayment of the liquidated sum of US $14,000 or N1,120,000 being money had and received by the defendant from the plaintiffs in furtherance of a business transaction for supply of one M.A.N. diesel tractor since December 1993, upon which transaction the defendant has since failed to perform.” The plaintiffs also claimed “12% interest upon the dollar per annum, or 15% interest upon the naira, per annum, either from the time of receipt by the defendant, until judgment.”

The action was, on the application of the plaintiffs, entered on the undefended list. The defendant, however, upon service, filed a notice of intention to defend the action. He deposed to an affidavit in which he set out his defence to the claim. The matter thereafter came up for hearing before Onnoghen, J. as he then was. The learned trial Judge, in a considered ruling on the defendant’s application, held that the defendant had no good defence to the action. Judgment was therefore entered for the plaintiffs in the sum of US $14,000 or N1,120,000 being money had and received by the defendant from the plaintiffs. The court also awarded 12% interest on the dollar or 15% interest on interest in Naira from December 1991 till date of judgment.

The defendant was not satisfied with the judgment and his appeal to the court below which was dismissed on the substantive claim but allowed in respect of the interest awards made by the trial court. He has now appealed to this court. Seven grounds of appeal were filed against the judgment.

The appellant filed an appellant’s brief and a reply brief in this court. The respondent filed a respondent’s brief. The appellant formulated the following two issues as arising for determination in the appeal:

“1.Whether the Court of Appeal was right in failing to consider appellant’s issues “Nos. 2, 3 and 4.

2 Whether the intervention and directives of the plaintiffs/respondents to WASCO International to ship the tractor to the plaintiffs/respondents at Port Harcourt did not discharge the defendant/appellant from further responsibility to deliver.’

The above two issues formulated in the appellant’s brief were adopted by the respondent.

On the appellant’s issue 1, it is submitted that the appellant formulated five issues for determination in the brief he filed at the court below. The court is said to have, instead of considering the five issues, gone on its own to formulate two issues and decided the appeal on the two issues formulated by the court. It is submitted that it was wrong of the court to raise new matters for the parties. The Court of Appeal is said to have improperly determined the appeal as a result of its failure to follow the issues formulated by the appellants.

Reference is made to the aspect of the appellant’s defence which was that he actually bought and paid for the tractor but that it was the delay on the part of the seller to ship the vehicle on time that made the respondents commence their action. It is further argued that since the respondents were aware of the fact that the appellant in fact bought the tractor because they (respondents) sent a fax message to the company requesting that the tractor be shipped to them directly, the appellant should no longer be liable. The court below was said to have failed to consider these facts before coming to the decision it reached in the case. If the court had duly considered this aspect, it would have come to the conclusion that the trial court was in error when it held that the appellant had no good defence to warrant transferring the case from the undefended list. This failure is said to have led to a miscarriage of justice.

It is submitted in reply in the respondents’ brief that while it is true that a court should confine itself to the issues raised by the parties, it is also the law that in appropriate cases, an appellate court is free to formulate such issues as are consistent with the grounds of appeal filed in pursuit of the proper administration of justice. It is also argued that if an appellate court is of the view that a consideration of one issue is enough to dispose of an appeal, it is under no obligation to consider all the other issues posed. The decision in Anyaduba v. Nigerian Renowned Trading Co. Ltd. (1992) 5 NWLR (Pt.243) 535 is cited in support of this submission.

It is also submitted that failure of an appellate court to consider and pronounce on all issues submitted to a court will not necessarily amount to a denial of fair hearing. It has to be shown that such failure was a fundamental vice which occasioned a miscarriage of justice. It is further argued that, in the instant case, the appellant’s complaint has no basis because the step taken by Salami, J.C.A. in the leading judgment was quite appropriate. Reference is made to the relevant passage of the leading judgment where the learned Justice said, inter alia:

“The learned Counsel for the appellant failed to relate the grounds of appeal to the issues formulated by him in the appellant’s brief.”

It is contended that, having made the above observation, the learned Justice went ahead to formulate the two issues which he considered appropriate in resolving the questions raised in the appeal and that he then said thus: