NIGERIAN AVIATION HANDLING COMPANY LIMITED v. YINKA WORLD INVESTMENT LIMITED & ANOR
(2012)LCN/5204(CA)
In The Court of Appeal of Nigeria
On Monday, the 5th day of March, 2012
CA/L/916/2007
RATIO
THE POSITION OF THE LAW ON GROUNDS OF APPEAL ARISING FROM THE RATIO DECIDENDI OF THE DECISION APPEALED AGAINST
Now, before I proceed to the consideration of the arguments of the respective parties on their respective issues as formulated, let me point out anon that it is desirable to embark on a scrutiny of the grounds of appeal with a view to identifying where the nuptial nuts of the grounds and issues are knit, as it is not only the law, that issues must be distilled from the grounds of appeal, but that such grounds of appeal must also arise from the ratio decidendi of the decision appealed against. See IDIKA AND ORS. VS. ERISI AND ORS. (1988) 2 NWLR (Pt.78) 563 (SC) GENERAL OIL LIMITED VS. CHIEF OGUNYADE (1997) 4 NWLR (PT.501) 613 (CA). Any ground of appeal that does not emanate from the decision is incompetent as it would be held to be speculative, unfounded and in violation of the sacrosanct position of the law that parties, just as the court are bound by the record of proceedings. See OSUOHA VS. THE STATE 2010 15 NWLR (Pt 1219) 364 at 416 particularly at 418 “E” wherein OGUNWUMIJU JCA had this to say “…In any event, there is no legal evidence on the record that the Appellant killed the deceased.” In IYOHO VS. EFFIONG (2007) 4 SCNJ 414 at 424, the following appears:- “Before I conclude this Judgment I would like to visit the Appellant’s Notice of Appeal on pages 238 – 242 of the printed record of proceedings, which contains four grounds of appeal. The whole discussion supra centres ground only one ground of appeal ie ground (3), from which the lone issue has been distilled, and which the arguments in the Appellant’s brief of argument covers. No issues were formulated in relation to grounds (1) (2) and (4), and no argument was proffered, to cover them, which situation translates to the fact that the said ground of appeal has been abandoned. The position of the law is that a ground of appeal from which no issue has been distilled, and upon which no argument has been canvassed is deemed abandoned by an appellant and should be struck out. In this wise grounds (1), (2) and (4) of appeal in the appeal are struck out. See AVO VS. AVO (2000) 3 NWLR (Pt.649) 443, J. E. ELUKPO AND SONS LTD VS. FHA (1991) 3 NWLR (Pt.179) 322, IKPUKU VS. IKPUKU (1991) NWLR (Pt.193) 571. In CONGRESS FOR PROGRESSIVE CHANGE AND INEC AND 12 ORS. ADEKEYE, JSC in his concurring Judgment said “It is not surprising that even before this court, the appellant did not formulate any issue touching on allegations of crime contained in its petition. I should state it that grounds of appeal, with no issue formulated there from, are deemed abandoned. See ALHAJI ABUDU VS. AKIBU AND ORS Vs. ALHAJI MUNIRAT ADUNTAN AND ORS. (2000) 7 SCNJ 189, SPARKLING BREWERIES LTD AND ANOR V. UNION BANK LTD (2001) 7 SCNJ 321. It is the law that any ground of appeal which has no issue formulated there from shall be deemed abandoned and consequentially struck out. See. NDIWE VS. OKACHA (1992) 7 NWLR (Pt.252) 129 wherein it was held; “No issue was formulated in respect of ground 7, In the circumstances the Court of Appeal should have struck out ground 7 of the grounds of appeal as having been abandoned.” PER. MOHAMMED AMBI-USI DANJUMA, J.C.A.
ON THE ISSUE OF JURISDICTION
The issue of jurisdiction is so fundamental that it is considered as the pivotal and life wire of adjudication. In a litigation, it is trite that a determination and outcome of an issue that centres on jurisdiction determines whether or not the other issues will be considered. See GWABRO Vs. GWABRO 1998 4 NWLR (Pt.544) 60, jurisdiction is a thresh hold issue, such that in any adjudication an objection, to the jurisdiction of the court to entertain a claim, is fundamental, for if there is want of jurisdiction the proceedings thereafter would become a nullity however well conducted and even if the parties submit to the jurisdiction. A court is not only entitled but is bound to put an end to proceedings if at any stage and by any means it becomes manifest that it lacked jurisdiction to entertain the proceeding. lt can do so suo motu or on its initiative. PER. MOHAMMED AMBI-USI DANJUMA, J.C.A.
EFFECT OF JURISDICTION
Jurisdiction is conferred either by the constitution or statute. It is not exercised at will were it so, courts of law would become uncontrolled and unruly horses and knights hungry for jurisdiction. It is not so intended. ‘This court having rendered a Judgment has become functus officio and cannot take an appeal in respect of the same company relating to jurisdiction decided. To do so would amount to an exercise in judicial usurpation of the jurisdiction of the Supreme Court to hear appeals from decision of the Court of Appeal. It would also amount to this court sitting on appeal over its own Judgment. Having no such power, therefore, this court cannot entertain an appeal that seeks to urge it to so do (as being done by the Appellant herein). See SOYINKA vs. ONI (2011) 13 NWLR (Pt.1264) page 294. PER. MOHAMMED AMBI-USI DANJUMA, J.C.A.
THE PRINCIPLE OF STARE DECISIS
The principle of stare decisis – the latin jargon that translates into “stand by thing interpreted or decided,” denotes that a court of law or Tribunal must follow previous decisions when same points arise again in litigation. See WILLAM M; live at al: Brief Making and the use of Law Books 32, 3rd Edition 194, copiously referred to at page 1537 Black’s Law Diction dry, 9th Edition, 2009 thus: “The Rule of adherence to judicial precedents finds its expression in the doctrine of stare decisis. This doctrine is simply that when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same Tribunal, or by those who are bound to follow its adjudication, unless it be urgent reasons and in exceptional cases.” PER. MOHAMMED AMBI-USI DANJUMA, J.C.A.
THE LAW OF BAILMENT
Where there is a right, there is a remedy in law. This is the case here. The evidence of DW1 clearly brings to play the provisions of section 19 of the Evidence Act, that facts not denied are deemed admitted.
See also DALBERTO VS. AKINTILO (2003) 4 SCNJ 328, (par.30) BEN THOMAS HOTELS LTD VS. SEBI FURNITURE (1939) 5 NWLR (Pt 123) 523, ONAGURUWA V. JAMB (2001) 10 NWLR (Pt.722) 742; possession of the Respondents goods having been taken by the Appellant, the relationship of bailment in addition to or even independent of express contract existed and made the Appellant liable in law.
see BROADLINE ENT. LIMITED vs. MONTERY MARITIME CORP. (1995) 9 NWLR (Pt.417) 1 at 23-24 par. G – B wherein the Supreme Court held thus:- “Although bailment is often associated with a contract, an action against a bailee can quite often be presented not only as an action in contract nor in tort, but as an action on its own sui generis, arising out of the possession had by the bailee of the goods. The law of bailment therefore overlaps the categories of the law of contract, tort and property and a bailee’s duty to take care with regard to the subject matter of the bailment can lie in contract or in tort.” ‘This court in OYEBADEJO vs. OLANIYI (2000) FWLR (pt 5) 829 at 850, para. E per ONALAJHA had this to say:_ “The relationship between a bailor and bailee can exist independently of any contract. It is created by the voluntary taking into custody of goods which are the property of another.” PER. MOHAMMED AMBI-USI DANJUMA, J.C.A.
LAW OF CONTRACT: THE POSITION OF THE LAW ON THE PRINCIPLE OF SANCTITY OF CONTRACT
By the sheer justice inherent in the principle of sanctity of contract, it is only the parties to it that are bound by the terms thereof. See JERIC NIG. LTD. VS. UBA PLC (2000) 15 NWLR (Pt 691) at page 97 at 450, ADAMS LTD VS. LAMIE (2000) 5 NWLR Pt 655, pg 138 at 142, ratio 8. In BEST (NIG) LTD VS. B. H. (NIG) LTD (2011) 5 NWLR Pt 1239,page 95, the Supreme Court re-emphasized the sanctity of contract and the binding effect thereof to the exclusion of any attempt for the court to rewrite any written contracts of the parties. This is what ADEKEYE JSC said.. “While a court of law must always respect the sanctity of the agreement between the parties, it must not make a contract for them or rewrite the one they have already made for themselves. …A contract may be defined as a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearance on the part of the other.” As I stated in OGBONNA’S case Supra…. PER. MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
NIGERIAN AVIATION HANDLING COMPANY LIMITED Appellant(s)
AND
1. YINKA WORLD INVESTMENT LIMITED
2. SALAUDEEN AMBALI Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Lagos State High Court in Suit No ID/1792/2002 wherein Judgment was delivered in favour of the Claimants/Respondents on the 12th day of July, 2007. By the said Judgment, the Respondent was awarded the sum of N11.85 million as the value of lost cargo and 10% interest on the said sum from the date of Judgment until final liquidation.
The claims at the trial court were as contained on pages 1 – 4 of the additional Record of Appeal filed by the Respondent.
By a Writ of Summons dated 6th November, 2002, and a further Amended statement of claim dated 29th September, 2005, the Respondent as claimant claimed as follows:-
The sum of N11.85 million being the value of four (a) cargoes belonging to the plaintiffs ie claimants but lost through the negligent handling of the defendant and its agents through the breach of contract; ALTERNATIVELY.
Delivery to the claimant of the four pieces of cargoes (sic) belonging to the claimants and containing a variety of high quality wrist watches.
A sum of N7 million loss of profit or earning resulting from the loss of cargoes- 10% interest per annum from the date of Judgment until full payment of the Judgment sum.
The Defendant filed an Amended Statement of Defence dated 10th January, 2003.
At the close of hearing, Judgment was entered for the plaintiff and the objection of the Defendant as to the jurisdiction of the state High court was overruled as the claim was held to relate to a contract of Bailment, express or implied between the parties and not a contract on International Aviation governed by the Admiralty jurisdiction of the Federal High Court exclusively.
It is instructive that at page 43 of the Record of this Appeal is contained the Judgment of this court in CA/L/133/2001 between the same parties herein, wherein this court had dismissed the appeal of the present Appellant and entered Judgment in favour of the Respondent when it held that the Federal High Court had no jurisdiction over the matter, but the Lagos State High Court, to which it made an order for the transfer of the case for expeditious trial.
It is against the trial and Judgment delivered by the Lagos State High Court, that this appeal has been lodged. The initial Notice of Appeal was withdrawn and refiled by the order of this court granted on the 24/10/11. The initial Notice of Appeal was filed on and is dated 6th September, 2007, but was struck out on 20/4/11.
The said order was granted after the court had taken argument in respect of motion filed 27/4/11. Appellant filed the Appellant’s Brief of Argument on 6/10/09 but it was regularized on 22/4/10 by order of this court and deemed filed within time.
a. It is the case of the Appellant that the loss of his goods in the Appellants warehouse at the Muritala Mohammed Airport on the 28th July 1999, arose from a contract of International Transportation by Air covered by Airway Bill.
The Appellant in his Brief of argument formulated 4 issues for determination from the 6 grounds of Appeal set out in his Notice of appeal.
The Appellant’s issues are as follows:-
(1) Whether the receipt issued by the Appellant (page 54 of the record), the purpose of which is stated and as for handling charges and VAT and which on its face referred to the Airway Bill pages 45 and 46 of the records issued by Ethiopian Airlines the carrier of the consignment to the Respondents, is enough to constitute by its own, in the absence of any further evidence, a contract of Bailment between the Respondents and the Appellant.
(2) Whether by virtue of the Appellant’s receipt (page 54 of the records), which refers to the Airlines (pages 45 – 45) of the records), the Defendants are not agents of Ethiopian Airlines the carrier of the claimants of goods, performing services in furtherance of the contract of international transportation by Air between the Ethiopian Airlines and the Respondents.
(3) Whether the loss of the Respondents consignment occurring before delivery of consignment to the Respondent (sequel to the contract of international Transportation by Air between the Respondents and the carrier, the Ethiopian Airlines evidenced by an Airway bill (pages 45 and 46 of the Records) and whilst in the custody of the Appellant as an Agent of the carrier Ethiopian Airlines is a loss which occurred during the period of Transportation of goods by Air.
(4) Whether the claim between the Appellant and the Respondent is Not an Aviation matter and the Lagos State High Court has and can exercise jurisdiction over the claim and award any damages to the Respondent.
The Respondent on his part also formulated 4 issues for determination. The 1st issues is:-
Whether the learned trial Judge was right in law to refuse to consider the issue of jurisdiction of the State High Court over this matter but instead held that the issue of jurisdiction had been laid to rest by the Court of Appeal in Appeal No.CA/L/133/2001 on 27th June, 2002 following the appeal from the Federal High court by the Appellant in this case in suit No.FHC/L/CS/919/99 (Ground 1).
Issue 2:
Whether in fact the Lagos State High Court has jurisdiction to adjudicate over this case. Ground of appeal No. 2.
Issue 3:
Whether there was simple contract of bailment between the Appellant and the Respondents separate and independent of the contract between the Ethiopian Airlines and the Respondents and whether the Appellant is liable to the Respondents in law (Grounds of Appeal 3 and 5)
Issue 4:
Whether the loss of goods in this case is a loss which occurred during the transportation of the goods by air and whether the loss is governed by the law on international transportation by Air.
(Ground of Appeal 4)
Now, before I proceed to the consideration of the arguments of the respective parties on their respective issues as formulated, let me point out anon that it is desirable to embark on a scrutiny of the grounds of appeal with a view to identifying where the nuptial nuts of the grounds and issues are knit, as it is not only the law, that issues must be distilled from the grounds of appeal, but that such grounds of appeal must also arise from the ratio decidendi of the decision appealed against.
See IDIKA AND ORS. VS. ERISI AND ORS. (1988) 2 NWLR (Pt.78) 563 (SC) GENERAL OIL LIMITED VS. CHIEF OGUNYADE (1997) 4 NWLR (PT.501) 613 (CA)
Any ground of appeal that does not emanate from the decision is incompetent as it would be held to be speculative, unfounded and in violation of the sancrosact position of the law that parties, just as the court are bound by the record of proceedings. See OSUOHA VS. THE STATE 2010 15 NWLR (Pt 1219) 364 at 416 particularly at 418 “E” wherein OGUNWUMIJU JCA had this to say “…In any event, there is no legal evidence on the record that the Appellant killed the deceased.” In IYOHO VS. EFFIONG (2007) 4 SCNJ 414 at 424, the following appears:-
“Before I conclude this Judgment I would like to visit the Appellant’s Notice of Appeal on pages 238 – 242 of the printed record of proceedings, which contains four grounds of appeal. The whole discussion supra centres ground only one ground of appeal ie ground (3), from which the lone issue has been distilled, and which the arguments in the Appellant’s brief of argument covers. No issues were formulated in relation to grounds (1) (2) and (4), and no argument was proffered, to cover them, which situation translates to the fact that the said ground of appeal has been abandoned.
The position of the law is that a ground of appeal from which no issue has been distilled, and upon which no argument has been canvassed is deemed abandoned by an appellant and should be struck out. In this wise grounds (1), (2) and (4) of appeal in the appeal are struck out. See AVO VS. AVO (2000) 3 NWLR (Pt.649) 443, J. E. ELUKPO AND SONS LTD VS. FHA (1991) 3 NWLR (Pt.179) 322, IKPUKU VS. IKPUKU (1991) NWLR (Pt.193) 571. In CONGRESS FOR PROGRESSIVE CHANGE AND INEC AND 12 ORS. ADEKEYE, JSC in his concurring Judgment said “It is not surprising that even before this court, the appellant did not formulate any issue touching on allegations of crime contained in its petition. I should state it that grounds of appeal, with no issue formulated there from, are deemed abandoned. See ALHAJI ABUDU VS. AKIBU AND ORS Vs. ALHAJI MUNIRAT ADUNTAN AND ORS. (2000) 7 SCNJ 189, SPARKLING BREWERIES LTD AND ANOR V. UNION BANK LTD (2001) 7 SCNJ 321.
It is the law that any ground of appeal which has no issue formulated there from shall be deemed abandoned and consequentially struck out.
See. NDIWE VS. OKACHA (1992) 7 NWLR (Pt.252) 129 wherein it was held; “No issue was formulated in respect of ground 7, In the circumstances the Court of Appeal should have struck out ground 7 of the grounds of appeal as having been abandoned.”
The learned counsel to the Respondent was therefore, right when he submitted that ground 6 of the Notice of Appeal should be deemed abandoned since no issue has been formulated there from.
I agree with him. Ground 6 of the Appellant’s Notice of Appeal is accordingly struck out.
Now, from the totality of the issues raised, I think, in my humble view that the issue of jurisdiction had been thrust out by the respective parties as the pivot of their contention.
The Appellant believed that the Federal high Court had jurisdiction while the Respondent say that the Federal High Court does not have jurisdiction. I shall, therefore, adopt the issue No.4 of the Appellant which is similar in essence to issues, 1 and 2 of the Respondents. What is more this issue stems from ground 1 of the Notice of Appeal which raises the question of jurisdiction. Ground 1 provides as follows:-
GROUNDS OF APPEAL
1. The learned trial Judge erred in law when she refused to consider the issue of jurisdiction of the State High Court over this matter and instead held that the issue of jurisdiction had been led to rest by the Court of Appeal in Appeal No.CA/L/133/2001 on the 27th June, 2002 following an appeal from the Federal High Court in suit No. FHC/L/CS/919/99 and need not be reopened.
PARTICULARS OF ERRORS
“(a) The learned trial Judge’s decision runs contrary to a long line of decisions by the Supreme Court to the effect that the issue of jurisdiction can be raised at any time in the process of trial and even before the Supreme Court for the first time. JERRIC NIGERIA LTD. vs. UNION BANK OF NIGERIA PLC (2000) 15 NWIR Pt.691 pages 447 at 450…”
The Appellants in their issue No.4 had contended that the Appellants are agents of an Airline, i.e Ethiopian Airlines, and that the loss of the Respondents cargo at the Appellant’s warehouse and before delivery to the Respondent occurred during the performance of a contract of international transportation by Air, evidenced by Airway bill. That the claim related to Aviation and NOT a contract of bailment. That it was an admiralty claim within the exclusive jurisdiction of the Federal High Court.
It was further submitted that the claim falls into the realm of causes matter relating to AVIATION and safety of Aircraft. Section 251 (1) (k) of constitution referred.
That aside from the constitutional provision aforesaid conferring jurisdiction exclusively on the Federal High Court, the loss of the Respondent’s Muritala Mohammed International Airport Ikeja, Lagos. That is was clear on the record that the Appellant’s only witness DW1 deposedon oath (pages 62 – 64 on of the records) and further confirmed during cross examination by the Respondents at pages 122 and 123 of the records that the Appellants operated a Bonded Warehouse at the International Airport Ikeja, where the loss occurred.
That the place of occurrence of the loss also consisted a basis for holding that it was an admiralty matter.
Section 1 (1) (g) of the Admiralty jurisdiction Decree (Act) No. 59 of 1991 provides as follows:
“Any matter arising within a Federal Port or National Airport and its precints.” That by the provisions of section 7 of the Federal High Court Act Cap. 134 LFN L990, the Federal High Court had exclusive jurisdiction.
Section 8 (1) of the said law provides thus:-
“In so far as jurisdiction is conferred upon the court in respect of the causes or matters mentioned in the foregoing provisions of the part of this Act, the High Court or any other court of a State or of the Federal Capital Territory Abuja shall to the extent that jurisdiction is so conferred upon the court cease to have jurisdiction in relation to such causes or matters.”
Learned counsel referred to the case of AMERICAN INSURANCE COMPANY vs. CEEKEY, (1981) SC 81 at 108 – 109 where it was held thus:-
“The intention and overall effect of the 1973 Act is to oust the High Court of Lagos State of their admiralty jurisdiction after the same jurisdiction had been vested in the Federal High Court.” That the Lagos State High Court therefore lacks jurisdiction to entertain this action, and therefore cannot adjudicate over same or award any damages to any of the parties to this action.
On the same issue of jurisdiction, the learned counsel for the Respondent contends in his issue No.1 that the issue of jurisdiction had been settled and laid to rest by the decision of this court in Appeal No.CA/L/133/2001 on 27th June, 2002 following the appeal from the federal High Court in suit FHCL/CS/919/99.
Learned counsel referred this court to pages 43 – 50 of the Additional Record of Appeal dated 6th May, 2009 and transmitted by the Respondents on the said 6th May 2009 submitted that in the face of the said Judgment of this court, the Appellant’s submission has no basis as he is by the argument and contention urging this court to overrule itself. Counsel submitted that it will be an abuse of court process for the Appellant to be allowed to relitigate the same matter before a court that had been adjudged to be without jurisdiction in the matter.
Let me say that, it is not only expedient but most reasonable to resolve this issue first as it has thrust to the fore not only the vexed issue of jurisdiction of the lower court, but also it raises the issue of the jurisdiction of this court in reconsidering its final Judgment by sitting on appeal over it or allowing its relitigation.
The issue of jurisdiction is so fundamental that it is considered as the pivotal and life wire of adjudication. In a litigation, it is trite that a determination and outcome of an issue that centres on jurisdiction determines whether or not the other issues will be considered.
See GWABRO Vs. GWABRO 1998 4 NWLR (Pt.544) 60, jurisdiction is a thresh hold issue, such that in any adjudication an objection, to the jurisdiction of the court to entertain a claim, is fundamental, for if there is want of jurisdiction the proceedings thereafter would become a nullity however well conducted and even if the parties submit to the jurisdiction.
A court is not only entitled but is bound to put an end to proceedings if at any stage and by any means it becomes manifest that it lacked jurisdiction to entertain the proceeding. lt can do so suo motu or on its initiative.
In the instant case, the Lagos State High Court here proceeded to declare Judgment for the Respondent at the suit of the Appellant instituted at the Federal High court that 1st was ordered by this court sitting on appeal to be transferred to the Lagos High Court on the ground that the Federal High Court had no jurisdiction over same, the cause not being an admiralty or Aviation matter within the exclusive jurisdiction of the Federal High Court, and also that the cause of action and claim related to a simple contract of bailment. That issue of jurisdiction having been decided quo the parties herein, was subject to appeal only to the Supreme Court and not by relitigation. By section 240 of the Constitution of the Federal Republic of Nigeria 1999 appeals from the Federal High Court, State High Courts etc lie to the Court of Appeal.
It provides as follows:-
“Subject to the provisions of this constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory Abuja, Sharia Court of Appeal of the Federal Capital Territory Abuja, Sharia Court of Appeal of a State…..etc,,
By the provision of section 233 (1) of the 1999 Constitution, “the Supreme Court shall have jurisdiction to the exclusion of any other court of law to hear and determine appeals from the court of law in Nigeria to hear and determine appeals from the Court of Appeal.
A perusal of the additional Record of Appeal transmitted by the Respondent clearly indicates that the action subject matter of this appeal had been adjudicated upon by this court. The Judgment of this court on CA/L/133/07 between NIGERIA AVIATION HANDLING COMPANY LIMITED AND 1. YINKA WORLD INVESTMENT LIMITED 2. SALAHUDEEN AMBALI was delivered on 27/6/02. At page 50 of the Records this court per the lead Judgment of G. A. OGUNTADE stated thus: “It is my firm view that the Lagos State High Court was right to have assumed jurisdiction to hear and determine this matter.
The conclusion l have arrived at is that the lower court had no jurisdiction. I must refrain from discussing the merit of the appeal. To do so would prejudice a fair hearing of the case as I intend to make an order, pursuant to section 22(2) of the Federal High Court Act, which enjoins the Federal High Court, in causes where it has no jurisdiction, to transfer the cause or matter to the State High Court with jurisdiction.
In the final conclusion, this appeal succeeds. The Judgment of the lower court given on 25/9/2000 is set aside. In its place I make an order that the case be transferred to the Lagos State High Court for determination…”
From the Judgment aforesaid it is conclusive that this court had exercised its appellate jurisdiction in hearing and determining the merit of the case appealed to it by the parties and as relating the issue of jurisdiction that is sought to be raised anew and twice over before this court.
Jurisdiction is conferred either by the constitution or statute. It is not exercised at will were it so, courts of law would become uncontrolled and unruly horses and knights hungry for jurisdiction. It is not so intended.
‘This court having rendered a Judgment has become functus officio and cannot take an appeal in respect of the same company relating to jurisdiction decided. To do so would amount to an exercise in judicial usurpation of the jurisdiction of the Supreme Court to hear appeals from decision of the Court of Appeal. It would also amount to this court sitting on appeal over its own Judgment. Having no such power, therefore, this court cannot entertain an appeal that seeks to urge it to so do (as being done by the Appellant herein). See SOYINKA vs. ONI (2011) 13 NWLR (Pt.1264) page 294.
The learned trial Judge was therefore right in law to refuse to consider the issue of the jurisdiction of the State High Court over this matter on the ground that the matter had been put to rest by the earlier decision of this court in suit No.FHC/L/CS/119/1999. Issues No. 1 and 2 of the Respondent which is issue 4 of the Appellant ought be resolved against the Appellant and in favour of the Respondent. That is to say, that the matter is not an Aviation matter and the Lagos State High Court can exercise jurisdiction over it and to the exclusion of the Federal High Court.
Ground 1 of the Notice of Appeal that attacks the attitude of the lower court in that respect has no merit and is dismissed.
The remaining issues raised by the Appellant i.e issues 1 and 3 – all seek to show that the contract between the parties was not one relating to bailment but a contract of Air carriage resulting in consequential losses for which the Respondent could claim at the Federal High court.
There, being no appeal against the merit of the decision of the Lagos State High Court as relating to the liability and quantum of damages awarded, I do not consider it necessary to delve into the merit thereof at a great length. I shall be brief on the aspect.
The Respondent had argued in his issue No.2 that it would amount to abuse of court process for the appellant to be allowed to reopen the issue of jurisdiction. I agree that it will be, as submitted, an abuse of court process to allow the appellant herein to seek to reopen the matter, merely because he was not satisfied with the decision from the appeal relating the Federal high Court. Re-opening by the Lagos high Court, as it were would indeed be an abuse of judicial process. Re-opening afresh before this court is yet another scenario of multiplicity of abuse.
The law is that the courts will frown against the use of the processes of a court or any of its machineries for an improper purpose or motive. This will be so, particularly where it has an oppressive tendency against either party. Why the circuit?
Shall there be no end to litigation and adherence to the doctrine of precedents and hierarchy. The Lagos State high Court is bound by the decision of this court earlier given that it had jurisdiction to hear the matter. So also the Federal High Court is bound by the decision of this court and shall so execute it. The Appellant is therefore wrong to pursue this matter further on the question of the court with jurisdiction to entertain the matter.
In AGBOOLA HOSEA AYOOLA AND 1. DR. WALE OKEDIRAN 2. PDP 3. INEC (ii) P.D.P. AND 1. DR. WALE OKEDIRAN 2. AGBOOLA HOSEA AYOOLA 3. INEC AND (iii) INEC AND 1. DR. WALE OKEDERAN AGBOOLA HOSEA AYOOLA PEOPLES DEMPCRATIC PARTY (PDP) CONSOLIDATED PETITION CA/I/EPT/NA37/2011, 37A & 37B/2011, this court held in a situation wherein the lower Election Tribunal held contrary to the decision of the supreme court in OKEREKE vs. YARADUA. On the compelling need for a pretrial conference thus:-
“Thus in view of the above provisions of the law and the authoritative decisions of both the Supreme Court and this court, the lower Tribunal’s chairman was wrong to have held, that the 1st Respondent’s failure to comply with paragraph 18(1) of the First Schedule to the Electoral Act (Supra) was a technical failure and that it did not go to the root of the Tribunal’s jurisdiction. Consequently the said issue is hereby resolved in favour of the Appellant, against the 1st Respondent.”
Upon this settled principle of precedence, I hold that the Respondent is right in arguing that the Appellant cannot relitigate this case on appeal other than as ordered by this court. In the same token, the Federal High Court cannot entertain the same case on the basis of jurisdiction declared to be non-existent. Even if the issue of jurisdiction were raised for the first time before this court, it is my view that this court would on that basis still decline jurisdiction as it had already determined the issue in 2005. There is no appeal and it has not been set aside by the Supreme Court.
The principle of stare decisis – the latin jargon that translates into “stand by thing interpreted or decided,” denotes that a court of law or Tribunal must follow previous decisions when same points arise again in litigation.
See WILLAM M; live at al: Brief Making and the use of Law Books 32, 3rd Edition 194, copiously referred to at page 1537 Black’s Law Diction dry, 9th Edition, 2009 thus: “The Rule of adherence to judicial precedents finds its expression in the doctrine of stare decisis. This doctrine is simply that when a point or principle of law has been once officially decided or settled by the ruling of a competent court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same Tribunal, or by those who are bound to follow its adjudication, unless it be urgent reasons and in exceptional cases.”
The learned trial Judge was perfectly right in refusing to consider the issue of jurisdiction to the benefit of the Appellant. Technically however, the learned High Court Judge did consider the complaint when he alluded to the binding decision of the Court of Appeal in that respect and the direction that it should hear the matter and expeditiously. This he did when he opined as follows:-
“Let me first address the issue of the jurisdiction of this court raised by the Defendants herein without any attempt to consider same as I find no need to do so, it is my view that the issue having been laid to rest by the Court of Appeal. In appeal No.CA/L/133/2001 on 27th June, 2002.”
Both the trial court and this court, and in no way exempting the Appellants herein, cannot make a different case from the conclusion earlier on arrived at. Even on the merit of it, which is not contested, I find as useful the submissions and agree with the Respondent’s learned counsel, when he submits that from the statement of claim of the Respondent, then claimant, it was a clear one of bailment and cognizable by the Lagos state high court.
The Appellant by their grounds 2, 3, 4 and 5 of the Notice of Appeal challenge the finding of the Lagos High Court that the transaction was a bailment of contract and not one involving Air Transportation.
A perusal of the statement of claim as contained in the decision of this court as found at pages 43 – 50, and particularly on pages 47 of record clearly shows that it was a contract of bailment. Bailment is defined as a delivery of goods on condition that the recipient shall ultimately restore them to the baillor. They may be hired, or lent, or pledged, or as in this case deposited for safe custody.
From the pleadings of the Appellant at the trial Lagos State High Court, it is clear as earlier on decided by this court that the Plaintiff/Appellant’s goods were handed over to the Respondent/Defendant for: safe custody for a fee; and that when the goods were demanded; the Defendant was unable to produce them. It is for that, that the claimant claimed the value of the goods.
The Appellant’s amended statement of claim contained at pages 74 – 77 of the record clearly shows that the Appellant’s claim at the trial High Court was one relating to bailment; and reference to the transportation of the goods by the Ethiopian Airways before delivery to the Respondent for safe custody did not make it otherwise. At page 15 of the record, the Appellant herein as plaintiff under the specific subtitle to wit:
“PARTICULARS OF BREACH OF BAILMENT”
Averred as follows:-
“(i) Defendant having possession of the said cargoes as bailee for reward failed to exercise reasonable care in the custody thereof.
(ii) The Defendant was under a duty to keep and deliver the four cargo pieces of wrist watches to the claimants which it failed to do.
9. The claimants say that after issuing the official receipt of Defendant, claimants agents were asked to come for the goods next day as the day was far spent.
10. The claimants say that when the claimants and their agents came the next day they were told that all the four pieces of cargoes were missing from the Defendant’s store.
11. The police at the Muritala Mohammed International Airport Ikeja were informed but the goods or cargoes could not be traced.
12. The Defendant through its officers accepted that the goods got stolen from their custody and they further admitted that they were not careful enough and that they acted in breach of the contract.
(a) The claimants say that the said loss was caused by the negligence and willful misconduct of the Defendant, its servants or agents acting within the scope of their employment.
In the particulars of negligence and willful misconduct as contained at pages 75 – 76 of the record and forming part of the Amended statement of claim, it was averred as follows:-
“This suit was transferred from the Federal High Court on the orders of the Court of Appeal. The Federal High Court suit was filed on 25/8/99 as No. FHC? C5/989/99, claimants plead processes of the Federal High Court suit and Judgment of the Court of Appeal.”
It is therefore obvious that a claimant or a party must be consistent in the presentation of his case at the trial and on appeal. A party cannot blow hot and cold, nor be allowed to set up a different case on appeal from that earlier on done at the lower court.
See GOMBE vs. P. W NIGERIA LTD (1995) 6 NWLR (pt 402) 402, CHIKWE ILO vs. NWALT (1998) 8 NWLR (pt 696) 187; STALLION NIG. LTD VS. EFCC (2008) 7 NWLR (Pt.1087) page 94.
Ground No. 1 that questions the transaction and its interpretation as bailment has no basis. The arguments in that regard proffered on Appellant’s issue No. 1, is preposterous and without basis.
The argument that the receipts received from the Respondent was tied to and was a continuation of the way will is not tenable. The only link, in my view, is to establish the identity of the cargoes that were in custody of the Respondent as bailee.
What was the purpose of the payment to the Defendant directly and not through the Ethiopian Airways? The payment made for vat and services to the Appellant that warehoused the goods for ultimate collection by the Respondent, was surely a consideration paid for the contract between the parties.
It is therefore not surprising that the Appellant’s counsel at page 173 of the Appellant’s brief of argument submits in concession as follows:- “At best, such payment, we submit is one of the factors to be considered by the court, but not conclusive evidence or proof, as to the existence of a contract of bailment between the parties.”
The contract herein was made between the parties, and for the benefit of the Respondent. The Appellant was not by the receipt on page 54 of the records, agents of the Ethiopian Airlines.
The Appellant had contended that the Appellant were the disclosed agents of the Ethiopian Airlines and could have only been sued jointly with it and not personally and solely.
In the law of agency, it is trite that a principal may be sued together with his agent; but where liability is established the principal bears the burden to the extent that the agent is shown to have acted in strict compliance with his agency.
In this case on appeal, a perusal of the evidence on record shows that the Respondent went severally to the Appellant for collection of the lost goods but was told to come back only to be told later that the goods were lost.
Since delivery could be made to the Respondents directly without recourse to the Airlines, for approval, it is my view that the parties intended the Appellant to be personally liable for whatever happened to the goods in the warehouse and custody of the Appellant which might prevent the actual delivery of the goods to the Respondents/owners thereof.
Having read Article 18 of the Warsaw Convention 1953, I think that the clear provisions thereof limits the liability of the carrier to situations where the goods are in their charge. For that is the situation that is defined as carriage by Air.
The Article provides as follows:-
“18(1) The carrier is liable for damages sustained in the event of the destruction or loss, or of damage to any registered luggage or any goods, if the occurred (sic) which caused the damage sustained took place during the carriage by Air.
18(2) The carriage by air within the meaning of the preceding paragraph comprises the period during which the luggage or goods are in the charge of the carrier whether in an aerodrome or board an aircraft or in the case of landing outside and aerodrome in any place whatsoever.
18(3) The period of carriage by Air does not extend to any carriage by land, sea or by river performed outside an aerodrome. It however such a carriage takes place in the performance of a contract for carriage by Air for the purpose of loading, delivery or transshipment any damage is presumed subject to proof to an event which took place during the carriage by air.”
The aforequoted provisions to my mind limits the liability of the Airlines materially, to loss in the Air or on the ground during agreed carriage or transportation or into the Airlines warehouse and loss therein.
The Appellant’s warehouse has not been shown to be the Ethiopian Airlines warehouse.
The Appellant’s learned counsel at page 119 of his Brief referred to the American case of ROYAL INSURANCE CO. VS. AIR EXPRESS INTERNATIONAL F. SUPP 1995 WEST LAW 723367 (SDNY December 71, 1995) as authority for the view that the fact that the goods were lost on ground was immaterial to the liability of the carrier.
That is not so. The liability was pronounced on the ground that the goods were lost in the carrier’s warehouse. That is not the position in the case on appeal. Curiously, the Appellant having pointed out in his address-paragraph 3 of page 119 of the record that the goods were in the Appellant’s warehouse at Muritala Mohammed Airport – and in a place distinct from the International Airport Terminal Building and parking slots of the International Airlines, thought they were in the charge of the carrier merely because of the proximity of the two Airports and the warehouse.
Although the goods may have been in a custom bounded warehouse, the Appellants were bound to release same to the Respondents where there was no legal hindrance or impediment. Even in cross examination of the Appellant’s witness at the trial, he confirmed that there was no stoppage order or seizure by the customs or any other authorities. From the totality of the evidence of the defence witness, MR. LALAYE as contained at pages 121 – 123 of the record of proceedings (Vol.1), it is obvious that the Appellant was in a contract with the Respondents in respect of goods which the Appellants had carried into their warehouse and accepted payments for such services rendered which must include the ultimate delivery to the owner Respondents. His evasive answers could not swerve the learned trial Judge in coming to the conclusion he arrived at. I agree with the learned trial Judge.
In this case the claimant’s witness had made it plain that the goods were placed at the Appellant’s warehouse on the advice of their agent and not at the instance of the Ethiopian Airlines. See page 114 wherein the following occurs:-
“Q. The goods were shipped through Ethiopian Airline; you did not have any power to determine where the goods were to be kept on arrival and who advised you when the goods arrived?
A. Our agent advised us to deposit it into NAHCO warehouse.
Q. It is the Airlines that advise as to your disposition or your agent?
A. It is the agent that has become the practice we use NAHCO’S warehouse.
Q. Is there a document that is how where you had an arrangement to ship or warehouse your goods?
A. The documents is taken charges from us, we paid the charges that showed that the agreement had been sealed.”
The totality of the claimant’s evidence and the answers in cross examination confirms the existence of a contract between the parties and the liability of the Appellant solely as against the Airlines.
It is trite that the contract of bailment is distinct from the contract of affreightment or carriage being alluded to by the Appellant in this court in COMET S. A. (NIG). LTD. VS. BABBIT (NIG) LTD. (2001) 7 NWLR (Pt.712) 442 at 450 F. G.
In such a contract of bailment it is the parties therein that are bound by the agreement. A non party as the Ethiopian Airlines, who has not been shown in the agreement or in the cause of the transaction of handling and warehousing of the goods as a disclosed principal, cannot be brought in.
In any case, even if the Ethiopian Airlines had been disclosed as such as principal the Respondents were still entitled to proceed as done, being the beneficiaries of the contract herein. See LABODE VS. OJUBU (2001) 7 NWLR (Pt.712), 256, 287. DF, 289 FG, 290C.
The Appellants as bailees had the obligation of keeping the goods safely until delivery. In the event of loss, it beholved on them to show that they had discharged that duty of care. It is not for the bailee to show how the loss occurred.
In ASAFA FOODS FACTORY VS. ALRAINE (NIG) LTD (2002) 12 NWLR (Pt.781) 353 at 373 at pages 373 paragraphs A – C; 380 – 381, paragraphs H – B, 381 paragraphs E – G the Supreme Court held that “the burden is upon the bailee to prove that he had discharged his duty under his undertaking to keep safely or deliver intact the goods entrusted to him. In other words, in case of loss of the goods, it is his duty as bailee to prove that the loss was not caused by his breach of duty or any failure on his part to take reasonable care; It is not the bailers duty to show that it did ………………..in this case, the loss of 428 cartons of the Appellants goods occurred while the consignment was in the possession of the Respondents. The onus of proof was therefore on the Respondents as bailees to show that the loss occurred without their fault or negligence and without any failure on their part to take reasonable care which onus they failed to discharge.” This binding decision of the Supreme Court is apt and applicable to the circumstances and facts of this case on appeal.
On the authority of same, I find the Appellants liable and without any scintilla of defence to warrant the appeal herein. This is more so that by the failure to deny paragraph 9 of the further amended statement of claim, which avers the sighting of the goods in the Appellants ware house and demand for delivery but a refusal on the ground that it was late but should be collected the following day, which never happened, is in law a case of implied admission of custody, non delivery and consequential loss.
Where there is a right, there is a remedy in law. This is the case here. The evidence of DW1 clearly brings to play the provisions of section 19 of the Evidence Act, that facts not denied are deemed admitted.
See also DALBERTO VS. AKINTILO (2003) 4 SCNJ 328, (par.30) BEN THOMAS HOTELS LTD VS. SEBI FURNITURE (1939) 5 NWLR (Pt 123) 523, ONAGURUWA V. JAMB (2001) 10 NWLR (Pt.722) 742; possession of the Respondents goods having been taken by the Appellant, the relationship of bailment in addition to or even independent of express contract existed and made the Appellant liable in law.
see BROADLINE ENT. LIMITED vs. MONTERY MARITIME CORP. (1995) 9 NWLR (Pt.417) 1 at 23-24 par. G – B wherein the Supreme Court held thus:-
“Although bailment is often associated with a contract, an action against a bailee can quite often be presented not only as an action in contract nor in tort, but as an action on its own sui generis, arising out of the possession had by the bailee of the goods. The law of bailment therefore overlaps the categories of the law of contract, tort and property and a bailee’s duty to take care with regard to the subject matter of the bailment can lie in contract or in tort.”
‘This court in OYEBADEJO vs. OLANIYI (2000) FWLR (pt 5) 829 at 850, para. E per ONALAJHA had this to say:_
“The relationship between a bailor and bailee can exist independently of any contract. It is created by the voluntary taking into custody of goods which are the property of another.”
The Appellant cannot be allowed to set up a claim of Agency, which if it were, the Appellant as Defendant would have applied to have the assumed principal joined for the purpose of indemnity.
This was not done, I take it that that is because; there was no justifiable basis for it to be done, or thought of, notwithstanding the seriousness of the case and quantum amount claimed. There was no compelling reason for believing that the Appellants were not acting for themselves solely.
The receipt Exhibit “N” for the payment of handling charges and vat issued by the Appellants to the Respondent suggests a contract in a documentary form between the parties thereto.
By section 132 of the Evidence Act, 1990 LFN, 2004 it is trite that the content of document cannot be varied by oral evidence unless there is proof of vitiating element.
See my decisions in suit no. CA/L/66/07 – G. O. AKUBUIRO VS. MOBIL OIL (NIG) PLC; CHIKWENDU OGBONNA ESQ. VS. 1. MR. NIYI OLASUNKANMI (doing business under the name and style of NOREX INVESTMENT CO. LTD. 2. MRS. ANNE ODE appeal No. CA/L/133/03, NATIONAL PETROLEUM CORPORATION VS. IDONIBOYE OBU (NIG) OIL AND GAS cases, NOGCI (1961 – 65) 367, no oral; or other extraneous evidence is permissible to explain the relationship as sought to be done belatedly by the Appellants. See CHIKWENDU OGBONA’S case (Supra).
By the sheer justice inherent in the principle of sanctity of contract, it is only the parties to it that are bound by the terms thereof. See JERIC NIG. LTD. VS. UBA PLC (2000) 15 NWLR (Pt 691) at page 97 at 450, ADAMS LTD VS. LAMIE (2000) 5 NWLR Pt 655, pg 138 at 142, ratio 8. In BEST (NIG) LTD VS. B. H. (NIG) LTD (2011) 5 NWLR Pt 1239,page 95, the Supreme Court re-emphasized the sanctity of contract and the binding effect thereof to the exclusion of any attempt for the court to rewrite any written contracts of the parties.
This is what ADEKEYE JSC said..
“While a court of law must always respect the sanctity of the agreement between the parties, it must not make a contract for them or rewrite the one they have already made for themselves.
…A contract may be defined as a legally binding agreement between two or more persons by which rights are acquired by one party in return for acts or forbearance on the part of the other.”
As I stated in OGBONNA’S case Supra…..
“The agreement between the Appellant and the 1st Respondent did not have nor contemplate the 2nd Respondent as a party or principal thereto. It was not an agency contract, as it was not so expressed. It cannot, from the clear terms thereof be implied either. I so hold.
As it was in the days of the decision in OGBONNA’S case supra, so it is even in this appeal. I so hold.
For the reasons exhaustively set out in this Judgment it is my conclusion that this appeal has no merit and must fail as all the issues formulated by the Appellant have been resolved against it and in favour of the Respondent.
Appeal is dismissed. Consequentially, I hold that the judgment of the trial court (Lagos State High Court) delivered on 12th July, 2007 in suit No.ID/1792/2002 is affirmed with an order that the sum of N50,000 only shall be paid as costs by the Appellant and in favour of the respondent.
KUMAI BAYANG AKAAHS, J.C.A.: Having perused the judgment of my learned brother, Danjuma JCA, I am in complete agreement that the issue on the jurisdiction as to which Court had the competence to adjudicate on the Plaintiffs’ claims was settled by the judgment of this court in appeal No.CA/L/133/07 between NIGERIA AVIATION HANDLING COMPANY LIMITED V. YINKA WORLD INVESTMENT COMPANY LIMITED AND ANOR. delivered on 27/6/2002 per Oguntade JCA (as he then was). Any of the parties who was dissatisfied with that decision could only lodge an appeal to the Supreme Court to have it set aside. Since the appellant did not appeal to the Supreme Court on the issue, it is estopped from raising it again as doing so is tantamount to relitigating on an already settled issue and asking this Court to overrule itself. I say emphatically that this appeal amounts to an abuse of court process.
I therefore agree with my learned bother, Danjuma JCA who considered the other issues raised in the appeal and came to the conclusion that the appeal lacks merit and it is accordingly dismissed. I also award N50,000.00 as costs to the respondents against the appellant for embarking on a futile exercise.
RITA NOSAKHARE PEMU, J.C.A.: I have read in draft the Judgment of my brother M.A. DANJUMA J.C.A. and I agree with the reasoning and conclusions that the present appeal has no merit and must fail.
I adopt same, and I subscribe to the consequential order made that the appeal be dismissed. It is dismissed by me. Accordingly, the Judgment of Honourable Justice M. A. Dada of the Lagos State High Court delivered on the 12th of July 2007 in suit No.ID/1792/2002 is affirmed by me with N50,000 costs in favour of the Respondents and against the Appellant.
Appearances
B. D. Attoe Esq with Maxwell Eze Esq.For Appellant
AND
Abani Esq.For Respondent
