G.N. Nwaolisah v. Paschal Nwabufoh (2011) – SC

⦿ CASE SUMMARY OF:

G.N. Nwaolisah v. Paschal Nwabufoh (2011) – SC

by PipAr Chima

⦿ COURT:

Supreme Court

⦿ AREA(S) OF LAW

⦿ NOTABLE DICTA

* LEAVE OF COURT MANDATORY WHERE CONDITION PRECEDENT
By virtue of section 233 of the 1999 Constitution of Nigeria and section 22 of the Supreme Court Act Cap 15 Laws of Nigeria 2004, the word leave means permission. Therefore an appellant is bound, where necessary to seek the formal permission of the court below before setting an appeal in process. Leave of court where it is required is a condition precedent to the exercise of the right to appeal. This failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate court. Hence an appeal from the Court of Appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained. – Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

* A SINGLE GROUND OF APPEAL CAN SUSTAIN AN APPEAL
It is further regular even if one only of the four grounds of appeal is found to involve a question of law, as that ground can on its own sustain the appeal. – Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

* IN PARI DELICTO
I find it convenient at this stage to unveil that Latin phrase “IN PARI DELICTO”. This is a Latin phrase for “in equal fault”. It is a legal term used to indicate that two persons or entities are equally at fault, whether the malfeasance in question is a crime or tort. The phrase is most commonly used by courts when relief is being denied to both parties in a civil action because of wrong doing by both parties. The phrase means in essence, that since both parties are equally at fault, the court will not involve itself in resolving one side’s claim over the others, and whoever possesses whatever is in dispute may continue to do so in the absence of a superior claim. The doctrine is similar to defence of unclean hands, both of which are equitable defences. – Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

* COURTS DO NOT MAKE CONTRACT FOR THE PARTIES
It is not the function of the court to make contracts between the parties. The courts duty is to construe the surrounding circumstances including written or oral statements so as attest the intention of the parties. Where the correspondence exchanged between the parties are read together, it can be assumed that the parties have come to an agreement. – Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

* CONTRACTUAL FRUSTRATION
Frustration occurs wherever the law recognizes that without default of either party, a contractual obligation has become in capable of being performed because the circumstances in which performance is called for would render it radically different from what was undertaken by the contract”. The events which have been listed by the court to constitute frustration are: (1) Subsequent legal changes or statutory impossibility (2) Outbreak of war (3) Destruction of the subject matter of the contract or literal impossibility (4) Government acquisition of the subject matter of the contract. (5) Cancellation by an unexpected event like where other party to a contract for personal service, dies or where either party is permanently incapacitated by ill-health, imprisonment etc., from rendering the service he has undertaken. – Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

* EXECUTION BECOMING MORE DIFFICULT IS NOT FRUSTRATION IN CONTRACT
A contract is not frustrated merely because its execution becomes more difficult or more expensive that either party originally anticipated and has to be carried out in a manner not envisaged at the time of its negotiation. – Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

* FAILURE TO PERFORM WITHIN TIME IS BREACH OF CONTRACT
Finally the law is that time is of essence where the parties have expressly made it so, or where circumstances show that it is intended to be of essence or where a definite time is fixed for execution of a mercantile and the contract even though time is not expressly made of the essence, thus failure to perform the contract within the limit will constitute a breach. Performance must be rendered within a reasonable in the absence of any specification as to time in the contract itself. – Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

* A FAILED CONTRACT – BREACHED CONTRACT
A contract can be discharged by breach. A breach of contract means that the party in breach has acted contrary to the terms of the contract either by non-performance or by performing the contract not in accordance with its terms or by a wrongful repudiation of the contract. A party who has paid money to another person for a consideration that has totally failed under a contract is entitled to claim the money back from the other. – Adekeye JSC. Nwaolisah v. Nwabufoh (2011)

* PRELIMINARY OBJECTION IN RESPONDENT’S BRIEF
These days, preliminary objections are argued in the respondent’s brief thereby obviating the need to file a separate Notice of Preliminary Objection, and to save time. Absence of the required Notice makes the Preliminary objection incompetent. – Rhodes-Vivour JSC. Nwaolisah v. Nwabufoh (2011)

* MOTION ON NOTICE FOR OFFENDING GROUNDS
Where other grounds of appeal can sustain an appeal a Preliminary objection should not be filed, rather a Motion of Notice should be filed against the offending grounds of appeal. – Rhodes-Vivour JSC. Nwaolisah v. Nwabufoh (2011)

* LEAVE OF COURT IS A CONDITION PRECEDENT
Leave means permission. Where an appeal is not as of right, leave under section 233 (3) of the constitution is a precondition that an applicant/appellant must seek and obtain before his appeal is entertained. The appeal would be declared incompetent and thrown out if the applicant failed to fulfill the pre-condition. – Rhodes-Vivour JSC. Nwaolisah v. Nwabufoh (2011)

* COMPLAIN FOR MISAPPLICATION OF THE LAW IS A GROUND OF LAW
Where the complaint in the ground of appeal is one of misunderstanding by the court of the law or misapplication of the law to the facts already established, it is a ground of Law. Where the ground of appeal disputes or questions the evaluation of facts by the court before applying the law, it is a ground of mixed law and fact. – Rhodes-Vivour JSC. Nwaolisah v. Nwabufoh (2011)

⦿ PARTIES

APPELLANT
G.N. Nwaolisah

v.

RESPONDENT
Paschal Nwabufoh

⦿ LEAD JUDGEMENT DELIVERED BY:

Olufunlola Oyelola Adekeye, JSC

⦿ APPEARANCES

* FOR THE APPELLANT

Mr. A. C. Anamugwu
V. I. P. Ozumba

* FOR THE RESPONDENT

Chief Ikenna Egbuwa
P. Nwachukwu

⦿ CASE HISTORY

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 Trial Court & Court of Appeal ruled against the Appellant.

⦿ ISSUE(S) & RESOLUTION

[APPEAL: ALLOWED]

1. 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.

RULING:
i. It is apparent that time is of essence in this contract. The parties embraced this in their contractual obligation. After the respondent was charged his fees for the clearance of the appellants container and the procurement of an import licence he promised to perform within one month. Moreover, the subject matter of the contract is a container shipped into Port Harcourt wharf which according to commercial practice must be cleared and evacuated from the Wharf within a stipulated time. Despite his claim to professional competence as a clearing Agent of many years standing, and he had on previous occasions obtained import licence this trial should not have posed any problem. He knew the process, the procedure and necessary documents required to procure a licence. He entered the agreement with the appellant in October 1984. He dilly-dallied so much that he came to demand for an extra sum of N35, 000.00 in February 1985 and introduced an outsider into the contract for the purpose of securing the money. On the 7th of April, 1986 the respondent wrote to the appellant asking for certain documents to facilitate the clearance of the goods. That was almost two years after he entered into the contract to clear the goods within one month. The respondent failed to clear the container, while the appellant lost the goods which had arrived in the country since July 1984.

ii. I conclude that the respondent is blameworthy for the breach of this contract for reasons that – (1) He resorted to antics which made clearance of the container of adhesive gum impossible. (2) As a clearing agent of many years standing he knew the documents to collect from the appellant to facilitate the procurement of the import licence right from the inception of the contract (3) It is apparent from his activities that he was not used to clearing through the transparent and legal means. (4) He did not enjoy the co-operation of the appellant in his device to extort him by incessantly asking for money. (5) Even the licence he purchased with N10,000 belonged to a shoe-company and not for clearance of adhesive gum. (6) He waited for two years into the contract on 7th April 1986 to ask for basic documents like (a) Tax Clearance Certificate (b) Certificate of Incorporation. I set aside the judgments of the two lower courts as being perverse.

⦿ ENDING NOTE BY LEAD JUSTICE – Per

⦿ REFERENCED (STATUTE)

⦿ REFERENCED (CASE)

⦿ REFERENCED (OTHERS)