PAUL E. EDEM V. CANON BALLS LTD.-2005

PAUL E. EDEM V. CANON BALLS LTD.

(2005) LCN/3315(SC)

In the Supreme Court of Nigeria

Friday, June 17, 2005

Case Number: SC. 129/1999

RATIO

COURT SYSTEM: LIBERTY OF INTERMEDIATE COURT

An intermediate court as the court below, does not have the liberty to decline a consideration of issues raised before it, unless it proposes to order a retrial and it is felt that a consideration of the issues raised may prejudice a fresh hearing before the trial court. This is because a further appeal against the judgment of the Court of Appeal may unsettle the decision of the court on the issues considered. PER OGUNTADE, J.S.C

JURISDICTION: POWER OF THE COURT OF APPEAL TO REFRAME ISSUES FOR DETERMINATION

Notwithstanding the fact that there is power in the Court of Appeal to reframe issues for determination in an appeal before it, it is to be stressed that such power falls to be exercised only in very limited circumstances, which include the following: (1) Where the grounds of appeal raised are repetitive with the result that issues formulated from them also are repetitive. (2) Where the issues formulated do not flow from the grounds of appeal raised. (3) Where the issues are poorly crafted in an appeal where the grounds of appeal are explicit. (4) Where issues framed have been unnecessarily fragmented with the result that multiple issues are framed by parties. PER OGUNTADE, J.S.C

JUSTICES:

IDRIS LEGBO KUTIGI JUSTICE,SUPREME COURT

DAHIRU MUSDAPHER JUSTICE, SUPREME COURT

IGNATIUS CHUKWUDI PATS ACHOLONU JUSTICE, SUPREME COURT

GEORGE ADESOLA OGUNTADE JUSTICE, SUPREME COURT

SUNDAY AKINOLA AKINTAN JUSTICE, SUPREME COURT

APPELLANTS

PAUL E. EDEM

RESPONDENTS

1. CANON BALLS LTD2. FELIX OKON NSEMO

JUDGEMENT

A. AKINTAN, JSC(Delivering the Judgement of the Court)

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 respondents’ 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.

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 appellants’ 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, went 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 commenced 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. Nigeria 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 instance case, the appellant’s complaint has no basis because the step taken by Salami, JCA 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:

‘’These two issues essentially embrace appellant’s issues (1) and (5) and the respondent issues 1, 2 and 6. All the other issues do not belong to this appeal. “

It is then submitted that it was not correct to say that the appellant’s said issues were not considered. The issues are said to have been considered and rightly discountenanced as they did not form part of the appeal before the court.

It is further submitted that for an issue formulated to be relevant in an appeal, it must relate to the grounds of appeal and must also arise from the judgment appealed against. Where, therefore, a ground of appeal complains of an issue which was not canvassed by the parties and contained in the judgment appealed against, such a ground will be incompetent. Salami V. Mohammed (2000) 9 NWLR (Pt. 673) 469 and Biocom Agrochemical Ltd V. Kudu Holdings (2000) 15 NWLR (Pt. 691) are cited in support of the above submission. As the decision of the trial court in the instant case was based on the evidence contained in the affidavits filed by the parties in the undefended matter, the three issues not considered by the court below are said to be based on facts not contained in the affidavits placed before the court. The court is therefore said to have rightly ignored the three issues.

As I have already mentioned above, the decision of the trial court was incorporated in the ruling of the court on the application of the appellant to have the case transferred from the undefended list. The learned trial Judge considered the evidence as deposed to by the plaintiffs/respondents in the affidavit filed in support of their application and those contained in the affidavit filed by the defendant/appellant. The facts relied on by the plaintiffs/respondents are set out in paragraphs 4 to 12 of their affidavit in support of their application for a writ of summons under the undefended list. They are as follows:

That sometime in 1993 about the 10th December thereof, the Defendant received the sum of $14,000 from the plaintiffs and issued a receipt in acknowledgment thereof, which copy is attached here and marked EXHIBIT ‘A ‘

That the Defendant caused the plaintiffs to give him the aforesaid amount by way of payment for supply of one M.A.N Savien Tractor required by the plaintiffs for business.

That despite instant receipt of the full amount by the Defendant from the plaintiffs as agreed, the Defendant either failed, neglected, refused or otherwise defaulted in the supply of this item to the plaintiffs, and for which he received full payment in advance.

That on added pressure on the Defendant by the plaintiffs soon after the contract, the Defendant actually showed the plaintiffs a letter from his supplier in Belgium which showed as far back as January, 1994, the tractor was supposed to be leaving Belgium. A copy of that letter is attached here as Exhibits ‘B’

That after the Defendant gave the plaintiffs the supposed proof of prospective receipt, the plaintiffs still had to wait until July, 1994 without any further reaction or delivery from the Defendant.

That on 12th July, 1994, the plaintiff decided to write the supposed suppliers in Belgium to make enquiry and to urge the soonest delivery of their requisition. A copy of the letter from the plaintiffs in that regard is attached here and marked EXHIBIT ‘C’

That till date of instituting these presents, there has been no reply or reaction to this letter.

That not long after issuing this letter, the plaintiffs again met the Defendant and asked for refund of the $14,000 (fourteen thousand dollars) being that the Defendant was unable to supply the equipment as promised and contracted.

That since then, until now, the Defendant has again failed to effect refund of the money whilst still persisting in the failure to supply the item for which the money was paid. “

The facts relied on by the defendant/appellant are, on the other hand, as set out in paragraphs 5-10 and 12 of his affidavit in support of notice of intention to defend the action. The paragraphs read as follows

“5. That sometime in 1991 the 2nd plaintiff approached me as the first officer on board National Shipping Line Boat and pleaded with me to buy him M.A.N Diesel Tractor for his Gas Company at Ikot Omin, Calabar.

That as a result of his plea and to further cement our relationship, I went with him to Bureau de Exchange where he exchanged N35.00 for a Dollar and gave me $14,000 (Fourteen Thousand Dollars) with specific instructions to purchase the said M.A.N Diesel Tractor with accessories.

That in keeping with his instructions on arriving Belgium I bought the said M.A.N Diesel Tractor from the Firm of WASCO INTERNATIONAL ANTWERPEN-BELGIUM. The photo copy of the receipt from the said company dated 10th November, 1993 is attached herewith and marked Exhibit ‘1’

That I also bought AXEE JACK, 2 tyres, wheel Spanner and 8 commercial batteries for the sum of $2,000.00. The photo copy of the receipt attached and marked Exhibit ‘2’

That I spent the balance of $3,000.00 on Local Transport and Travelling in Belgium.

That on the 1st January, 1994 I received a fax Message from the company WASCO International Belgium informing me that the truck will put on the next boat going to Port Harcourt. The copy of the fax message is attached and marked Exhibit ‘3’

That before this date I had on 20th day of September, 1993 sent a fax message to WASCO International, Belgium threatening police action if it failed to ship the Tractor. Photocopy of the fax Message and marked Exhibit ‘4’.”

The plaintiffs’/respondents’ case as set out in their affidavit in support briefly is that they paid the defendant/appellant the sum of US$14,000 for the purchase from abroad and delivery to the said plaintiffs/respondents in Nigeria a M.A.N Tractor and that the defendant/appellant failed to deliver the said Tractor or refund the money paid to him despite repeated demands. The defence of the defendant/appellant, as set out in his affidavit, is that he bought the vehicle but it was yet to be delivered to him by the person from whom he bought the vehicle.

The three issues formulated in the appellant’s brief in the brief filed at the Court of Appeal which was not considered by that court are as follows:

“2 Having established that the defendant actually bought the tractor in Belgium with the money supplied by the plaintiff, whether the failure to deliver the same to the plaintiff at the commencement of the action constituted a breach on the part of the defendant.

Whether the relationship between the plaintiff and the defendant was not of the principal and agent in which case the direct communication by the plaintiffs with the supplier in Belgium directing the later to ship the tractor directly to the plaintiff had the effect of discharging the defendant from further responsibility (if any).

Whether the mere admission by the defendant that he received the sum of $14,000 from the plaintiffs amounted to acceptance of liability when it was clear from the evidence on both sides that the defendant actually bought the tractor with the money as requested by the plaintiffs. “

The main dispute between the parties, in my view, was the refund of the money paid to the defendant/appellant for a failed consideration. The question whether the appellant actually bought the tractor from a dealer who failed to deliver to him as raised in his said issue 2 not considered at the court below is, in my view, totally irrelevant. Similarly, the fact that the appellant disclosed the name of the company from whom he claimed he bought the tractor and that the respondents wrote the said company a letter to which there was no reply, as raised in the appellant’s issue 3 in the court below, is also irrelevant. So also is the contention of the appellant that he received the money and made the purchase from a supplier, who failed to deliver as raised in the issue 4, is no defence to his liability for the plaintiffs’ claim.

The law is settled that a court should confine itself to the issues raised by the parties in the case before it. See UBA Ltd V. Achora (1990) 6 NW LR (Pt. 156) 254; and Rabiu V. Abasi, Supra. Thus, apart from the questions raised in the brief of the parties that are relevant to and arise from the issues raised in the case, all other secondary issues are irrelevant and should rightly be ignored because they invariably obscure the main or real issues requiring determination. See Din V. African Newspaper of Nigeria Ltd (1990) 3 NWLR (Pt. 139) 392. In the instance case, I have no doubt that the three issues not considered by the court below are totally irrelevant to the questions in dispute in the appeal before the court. They were therefore rightly rejected. Similarly, the court below was right when it formulated the two new issues with which it resolved the questions raised in the appeal. There is therefore no merit in the appeal as it relates to the appellant’s issue 1.

The contention of the appellant, as canvassed in Issue 2, is that the intervention of the respondents when they made direct contact with the company from whom the appellant claimed he bought the tractor, was sufficient to discharge him from further responsibility to deliver the tractor to the respondents. It is submitted that the respondents’ act had reduced the appellant’s relationship with the respondents as that of principal and that of a disclosed agent.

I have no doubt in dismissing this submission as totally inapplicable to the instant case. This is because an agency relationship exists only where a person called the agent has the authority to act on behalf of another called principal. See Bamgboye V. University of Ilorin (1991) 8 NWLR (Pt. 168) 415. But the facts of the instant case do not support that contention. This is because the facts in this case are that the respondents merely wrote to the company in Belgium, from whom the appellant claimed he bought the tractor, asking for information about the purchase made by the appellant and to which there was no reply. That act is definitely not enough to reduce the relationship existing between the parties to that of principal and agent. There is therefore no merit in the appeal as it relates to the second issue.

In the final result, I hold that there is totally no merit in the appeal and I accordingly dismiss it with N10,000 costs in favour of the respondents.

L. KUTIGI, JSC

I have had the privilege of reading in advance the judgment just delivered by my learned brother Akintan, JSC. I agree with his reasoning and conclusions. The facts are simple and straight forward. The Defendant collected the sum of US $14,000 or N1,120,000 from the Defendants for the supply of one M.AN. Diesel Tractor only. The tractor was never supplied and the Defendants went to Court. They were entitled to recover their money from the Defendant. They got it. Both the trial High Court and the Court of Appeal were right in their judgments. The appeal has no merit. It is accordingly dismissed with N10,000.00 costs against the Defendant/Appellant and in favour of the Plaintiffs/Respondents.

MUSDAPHER, JSC:

I have had the honour to read in advance the judgment of my Lord Akintan, JSC just delivered with which I entirely agree. For the same reasons so clearly advanced in the aforesaid judgment what. I respectfully adopt as mine, I too dismiss this appeal, as it is without any merit. I abide by the order for costs contained in the aforesaid judgment.

PATS ACHOLONU, JSC

I agree. I have nothing more to add. It is a thoroughly bad case which the learned Counsel for the Appellant tried though unsuccessfully to garnish and burnish with forensic advocacy. It did not work. I too dismiss the appeal and abide by the costs in the leading judgment.

OGUNTADE, JSC:

The respondents brought their suit at the Calabar High Court of Cross-River State claiming against the appellant as the defendant for the sum of $14,000.00 being the amount given by the plaintiffs to the defendant for the purchase of one M.A.N. diesel tractor. It was alleged that the defendant neither supplied the tractor nor refunded plaintiffs’ $14,000.00.

The action was brought under the Undefended List Procedure of Cross-River State, pursuant to Order 23 rule 1, of the State High Court Rules, 1987. The defendant, filed a notice of intention to defend the suit and an affidavit setting forth his defence to plaintiffs’ suit. After hearing arguments on the application, Onnoghen J. (as he then was), on 20/11/95 held that, the defendant’s affidavit, did not disclose a defence to the suit. He accordingly granted plaintiffs’ claims.

The defendant, dissatisfied with the judgment, brought an appeal before the Court of Appeal sitting at Enugu (hereinafter referred to as ‘the court below’). On 6/5/98, the court below, in its judgment partially allowed the appeal by setting aside the interest awarded. It affirmed the judgment of the trial court on the principal sum of $14,000.00 as claimed. It was also ordered that the trial court should consider anew, the interest to be awarded. Still dissatisfied with the judgment of the court below, the defendant has brought this further appeal before this court. In the appellant’s brief filed, the appellant identified two issues for determination. These are:

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

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.”

As I observed earlier, this was an action under the Undefended List Procedure. The plaintiffs/respondents filed an affidavit in support of their Writ of Summons. Paragraphs 4-14 of the affidavit filed by the plaintiffs/respondents read thus:

“4. That sometime in 1993 about the 10th of December thereof, the Defendant received the sum of $14,000.00 from the plaintiff and issued a receipt in acknowledg-ment thereof, which copy is attached here and marked EXHIBIT’A’.

That the Defendant caused the plaintiffs to give him the aforesaid amount by way of payment for supply of one M.A.N. Saviem Tractor required by the plaintiffs for business.

That despite instant receipt of the full amount by the defendant from the plaintiffs as agreed, the Defendant either failed, neglected, refused or otherwise defaulted in the supply of this item to the plaintiffs, and for which he received full payment in advance.

That on added pressure on the Defendant by the plaintiffs soon after the contract, the Defendant actually showed the plaintiffs a letter from his supplier in Belgium which showed that as far back as January, 1994, the tractor was supposed to be leaving Belgium. A copy of that letter is attached here as Exhit ‘B’.

That after the Defendant gave the plaintiffs the supposed proof of prospective receipt, the plaintiffs still had to wait until July, 1994 without any further reaction or delivery from the Defendant.

That on 12th July 1994, the plaintiffs decided to write the supposed suppliers in Belgium to make enquiry and to urge the soonest delivery of their requisition. A copy of the letter from the plaintiffs in that regard is attached here and marked Exhibit ‘C’.

That till date of instituting these presents, there has been no reply or reaction to this letter.

That not long after issuing this letter, the plaintiffs again met the Defendant and asked for refund of the $14,000.00 (fourteen thousand dollars) being that the Defendant was unable to supply the equipment as promised and contracted.

That since then, until now, the Defendant has again failed to effect refund of the money whilst still persisting in the failure to supply the item for which the money was paid.

That the plaintiff s solicitor now advises me and I verily believe that this is a proper case in which the court can grant an order, and determine this action under the undefended list, more so because even the interest claimed in addition can be computed into a definite figure.

That the plaintiffs solicitors further advise me and I verily believe that the Court may in the circumstance award judgment in the currency by which the transaction was consummated, and only in the alternative, order payment in local currency, against the going rate of the dollar to the Naira.

The defendant’s defence to the suit is as disclosed in the affidavit which he filed. In paragraphs 2 to 15 thereof, the defendant deposed:

“2. That I have been served with the Writ of Summons and Affidavit of the plaintiffs and this affidavit is deposed to in response thereto.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

That I and the 2nd plaintiff are friends.

That some time in 1991 the 2nd plaintiff approached me as the first officer on board National Shipping Line Boat and pleaded with me to buy him M.A.N. Diesel Tractor for his Gas Company at Ikot Omin, Calabar.

That as a result of his plea and to further cement our relationship, I went with him to Bureau De Exchange where he exchanged N35.00 for a dollar and gave me $14,000.00 (Fourteen thousand dollars) with specific instructions to purchase the said M.A.N. Diesel Tractor with accessories.

That in keeping with his instructions on arriving Belgium I bought the said M.A.N. Diesel Tractor from the firm of WASCO INTERNATIONAL ANTWERPEN-BELGIUM. The photocopy of the receipt from the said Company dated 10th November, 1993 is attached herewith and marked as Exhibit’ 1.

That I also bought AXEE JACK, 2 Tyres, Wheel spanner and 8 commercial batteries for the sum of $2,000.00. The photocopy of the receipt attached and marked Exhibit ‘2’

That I spent the balance of $3,000.00 on Local Transport and travelling in Belgium.

That on the 1st day of January, 1994 I received a fax massage from the company WASCO International Belgium informing me that the truck will be put on the next boat going to Port Harcourt. The copy of the fax message is attached herewith and marked Exhibit ‘3’

That I do not know the 1st plaintiff in this case as I have never got any transaction with it.

That before this date I had on 20th day of September, 1993 sent a fax message to WASCO International, Belgium threatening police action if it failed to ship the Tractor. Photocopy of the fax message attached and marked Exhibit ‘4’.

13.That I strongly deny owing the plaintiffs the sum of $14,000.00 as endorsed on the Writ of Summons.

14.That I have good defence to the plaintiffs claim and it is in the interest of justice that the matter be transferred to the ordinary list for proper resolution of all the issues raised.

That I depose this affidavit in good faith believing the contents to be true, correct and in accordance with the OATHS act, 1990.

A comparison of the extracts from the plaintiffs’ and the defendant’s affidavits reproduced above shows that the defendant admitted receiving $14.000.00 from the plaintiffs. The defendant also agreed that the money was meant for the purchase of a M.A.N. diesel tractor for the plaintiffs and that as at 17/3/95 when he deposed to the affidavit, the tractor had not been delivered. The defendant stated that he had purchased the tractor from a seller in Belgium and fully paid for it. The defendant stated that in agreeing to help the plaintiffs acquire the tractor, he acted in the spirit of friendship between him (i.e. the defendant) and the 2nd plaintiff.

It was the appellant’s first issue that, whereas he raised five issues in his appellant’s brief before the court below, that court erroneously considered just two of such issues and that issues 2, 3 and 4 in his appellant’s brief were not considered. Appellant’s counsel argued in his brief that the court below was in error not to have considered the said issues 2, 3 and 4. At pages 47 – 48 of the record, the appellant’s issues for determination before the court below were stated to be the following:

“(1) Whether the defendant’s affidavit did not disclose a defence on the merit and whether it was open to the learned trial judge to hold that no defence known to law was disclosed when the plaintiffs did not state that in their belief there was no defence to the action as required by law.

(2) Having established that the defendant actually bought the tractor in Belgium with the money supplied by the plaintiffs whether the failure to deliver the same to the plaintiffs at the commencement of the action constituted a breach on the part of the defendant.

(3) Whether the relationship between the plaintiffs and defendant was not that of principal and agent in which case the direct communication by the plaintiffs with the supplier in Belgium directing the latter to ship the tractors directly to the plaintiffs had the effect of discharging the defendant from further responsibility (if any).

(4) Whether the mere admission by the defendant that he received the sum of $14,000.00 from the plaintiffs amounted to acceptance of liability when it was clear from the evidence on both sides that the defendant actually bought the tractor with the money as requested by the plaintiffs.

(5) Whether the claim for interest at 12% and 15% respectively did not in the circumstances amount to a claim for special damages which ought to have been specifically pleaded and proved (but which was not done) and whether it was right to order such interest to run from December 1991 when it was the plaintiffs’ case that the defendant received the money on 10th December, 1993.”

The Court below, for reasons which it did not state and which were not explicit on the face of the record, elected to consider just 2 of appellants’ five issues. In coming to this conclusion, the court below at page 101 of the record said:

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“The issues calling for determination in the circumstance of the present appeal are as follows –

Whether in the absence of an averment in the affidavit in support of the claims under undefended list that in their belief the defendant now appellant has no defence to the action, the suit is still maintainable on undefended list.

Whether the respondents proved the basis for awarding interest to them, if so from what time did interest commence to accrue.’

These two issues essentially embrace appellant’s issues (1) and (5) as well as respondents’ issues 1, 2 and 6. All other issues do not belong to this appeal, some of which can only be answered if evidence were proffered.”

In approaching a resolution of appellants’ first issue in this appeal, it is important to ascertain whether or not the appellant’s issues 2, 3 and 4, which he claimed were not considered, did in fact arise from the grounds of appeal filed. The appellants’ grounds of appeal nos. 2 to 5 which cover the issues not considered read:

“(2) ERROR IN LAW

The learned trial judge erred in law when he failed to hold that time was not of the essence of the contract (and it was not so averred) and that the failure to deliver the M.A.N. Diesel tractor between January and July 1994 did not Constitute a breach of contract on the part of the defendant having regard to the combined effect of the plaintiffs’ Exhibits ‘B’ and ‘C’.

Particulars of error:

(i) The plaintiff did not treat the contract as having ended nor did he exercise any option to repudiate the same.

(ii) The contract was still subsisting and it was wrong to order refund of the money paid on the same in the face of the evidence that the defendant actually placed order for the tractor in Belgium to the knowledge of the plaintiff and in the face of the evidence that the non-delivery of the tractor was due to no fault of the defendant.

ERROR IN LAW

The learned trial judge erred in law when he failed to hold that the defendant was at all material time merely an agent or servant of the plaintiff for the purpose of placing an order for the tractor, the plaintiff having adopted the transaction between the defendant and the Belgium supplier as per his exhibit ‘C’

Particular of error

(i) When the plaintiff wrote to the Belgium supplier directing that the tractor be shipped to him directly, the defendant stood discharged from any liability for the non–delivery of the tractor.

(ii) By writing to the Belgium supplier the plaintiff as principal assumed responsi-bility and assumed full control of the order and delivery to the exclusion of the defendant and the liability of the defendant if any was extinguished.

ERROR IN LAW

The learned trial judge erred in law when he regarded the defendant’s admission of the receipt of the sum of $14,000.00 at the exchange rate of N35.00 to the dollar as an admission of liability to the plaintiffs claim.

Particulars of error

(i) The money so received was to the knowledge of the plaintiff fully paid to the Belgium supplier and the non-delivery of the tractor was not proved in evidence to be due to the defendant’s negligence or omission or default.

(ii) The $14,000.00 received by the defendant was accepted by both parties as having left the possession of the defendant to the knowledge of the plaintiffs and was shown to be in hands of the Belgium supplier.