Compulaw - 1st Indigenous Digital Law Library

Brief

Leave to Appeal – Nature of
Grounds of Appeal – Nature of and use of
Concurrent findings of fact – Whether Leave of court is required to appeal against
Appeal - when it can lie from decisions of the Court of Appeal to the Supreme Court as of right
Ground of Appeal - Whether one valid ground of appeal can sustain an appeal
Frustration of Contract
Frustration of Contract – Nature of and when it occurs
Contract – Whether court can make same between parties
Contract – When time is of essence
Contract – Breach of and what it connotesa) Act, 2007
Breach of Contract – Options open to parties for breach
Section 22 of the Supreme Court Act 2004
Section 233(3) of the 1999 Constitution.
Section 233(2) of the 1999 Constitution
Section 233 of the 1999 constitution
Section 233 2(a) of the 1999 Constitution
Order 2 Rule 32 of the rules of the Supreme Court as amended in 2002

Facts

This case started at the High Court of Anambra State sitting at Onitsha. Appellant, as Plaintiff, in his amended Statement of Claim, claimed against the Defendant PASCHAL NWABUFOR, a clearing agent operating under the name and style of PASKODI MARITIME AGENCIES, as follows:

1.
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.
2.
The sum of US$172,200 (One Hundred and Seventy Two Thousand, Two Hundred US Dollars).
3.
Interest on the above sum of money at the rate of 25% from 17th April, 1986 up till date of judgment.
4.
General Damages as may be assessed by the Court.

The facts leading to the foregoing claim have been summarized in the leading judgment. Essentially, the 730 cartons of variety of adhesive gum imported by the Appellant were shipped from Italy to Nigeria, via Port Harcourt Wharf, at a time when the goods were not affected by the Customs demand for the import licence. However, in July, 1984 when the goods arrived, neoprene glue had come under specific import licence, and therefore could not be cleared without the procurement of an import licence. The Respondent who was engaged to clear the goods had been told that the Appellant had no import licence. He therefore charged his fee which included the cost of procuring a licence to enable him to clear the goods within one month from August, 1984. His fee was fully paid, yet he failed to honour his promises. This failure led to the goods being sold as overtime cargo. The Respondent both in his pleadings and oral testimony admitted that he was contracted to clear and deliver the goods including his obligation to procure the import licence for N10,000.00 (Ten thousand Naira) which he did; but he failed to explain why he did not use the licence to clear the goods. The Respondent disputed the value of the goods. While the Appellant put the value at US$172,200.00 the Respondent averred that it was US$4,860.84. However on 2/2/1988, the Appellant was informed through a letter from the Nigerian Ports Authority that his container was declared as over-time cargo and sold as Lot 119.

The Appellant sued the Respondent for breach of agreement to clear the container. In his judgment, the learned trial Judge Olike (J), on 26/9/1977, having held inter alia, that the parties are in pari delicto, dismissed the suit.

Being dissatisfied with the decision of the trial court, the Appellant appealed to the Court of Appeal, Enugu Division. 3 issues were distilled for resolution. On 13/5/2003 the court below resolved two issues in favour of the Appellant but on the third issue, which was rated as touching upon a substantive matter, the court found it against the Appellant.

It is therefore against the judgment of the court below in relation to this third issue that this appeal has been further brought to this Court.

Nwaolisah V. Nwabufoh (2011) CLR 6(k) (SC)

Judgement delivered on June 24th 2011

Brief

Facts

Issues