The Use Of Preliminary Objection To Challenge An Appeal

In the Supreme Court of Nigeria Holden at Abuja On Friday, the 7th Day of May, 2021

Before Stephen Dalyop Pam, J.
Musa Dattijo Muhammad
Chima Centus Nweze
Helen Moronkeji Ogunwumiju
Abdu Aboki
Tijjani Abubakar
Justices, Supreme Court
SC.629/2017

Between

Mr. Smith Collins Appellant

And

DHL International Nig. Limited Respondent

(Lead Judgement delivered by Honourable Tijjani Abubakar, JSC)

Facts

The Respondent is a limited liability company who carries on courier services for delivery of mail, parcels and goods within and outside Nigeria. The Respondent, who was contracted by the Appellant to collect an admission letter from Canada and deliver same to him in Owerri, Imo State, failed to deliver the Appellant’s admission letter. The said letter was misdirected (the admission letter was collected and delivered in Denmark, while he received a letter meant for delivery in Denmark) despite an undertaking from the Respondent that the admission letter would be delivered to the Appellant within a particular time frame, noting that time was of the essence. Realising the mistake, the Respondent promptly notified the Appellant of the development. Admitting its mistake, the Respondent deployed all machinery to search and retrieve the parcel, which was misdirected. However, owing to the Respondent’s inadvertence resulting in failure to deliver the Appellant’s admission letter as at when due, the Appellant allegedly lost his admission. Consequently, the Appellant instituted an action against the Respondent at the High Court of Owerri, Imo State, for breach of contract.

At the trial court, pleadings were duly filed and exchanged between parties, and the matter proceeded to Pre-trial Conference. At this stage, some documents (Exhibits A-P) were admitted by the learned trial Judge with the consent of the parties, and the matter proceeded to hearing. The Appellant testified for himself in proof of his claim, while the Respondent called a sole witness in its defence. Judgement was thereafter, entered in favour of the Appellant, and the sum of N10 million was awarded in his favour as general damages.

Aggrieved by the decision of the trial court, the Respondent appealed to the Court of Appeal. Thereat, counsel for the Appellant herein (as Respondent before the Court of Appeal), challenged the two Issues for Determination formulated by the Respondent in this appeal on the ground that they did not derive from the Grounds of Appeal. This was not contained in the Respondent’s Brief at the lower court but argued orally at the hearing of the appeal. The Court of Appeal, however, rejected the argument. Subsequently, the lower court affirmed the decision of the trial court, but unilaterally amended the damages awarded to the Appellant. Dissatisfied with the interference of the lower court, the Appellant appealed to the Supreme Court.

Issues for Determination

The following issues were distilled for determination:

1. Whether the Court of Appeal was right to discountenance Appellant’s objections to issues one and two formulated and argued by the Respondent as Appellant before the Court of Appeal, and to admit Exhibit R (an agreement between parties which limits liability of the Respondent to US $100).
2. Whether the decision of the Court of Appeal interfering with the quantum of general damages awarded by the trial court, is not null and void.

Arguments

On the first issue, counsel for the Appellant argued that the law is settled, that an Issue for Determination must be rooted in a ground of appeal. He cited MADUME v OKAFOR (1996) 4 S.C.N.J 73 at 285 to further contend that when an argument on an issue is not derived from a ground of appeal, it will be rendered incompetent and liable to be struck out. He submitted that the issues formulated by the Respondent did not arise from any of the Respondent’s Grounds of Appeal, and as such, were incompetent. He submitted further that upon raising this contention at the lower court, the court wrongly rejected his arguments, as it could be seen upon perusal of the records, that he had in fact, raised this issue/argument and argued same orally during the hearing of the appeal, although he failed to reflect the details of the said argument in his brief.

In response, counsel for the Respondent submitted that the lower court was right in admitting Exhibit R based on relevancy, as the Appellant had not only made ample reference to it in his submission, but had also identified the document and acknowledged being served same. Citing OKONJI v NJOKANMA (1999) 14 NWLR (Pt. 638) 250, he contended further that admissibility of evidence is a question of law and is based on whether same is pleaded (which was the case by virtue of a cursory review of the documents frontloaded), relevant and not rendered inadmissible by any law or force. Flowing from this, counsel for the Respondent contended that in determining whether it was only the first page or both pages of the inbound shipment paper that was pleaded by the Respondent, the lower court failed to take advantage/full fact of the list of documents dated 7th May, 2021 wherein both the first and second page of the inbound shipment paper were frontloaded as a single document at the point of filing. He submitted further that, the rejection of the second page of the inbound shipment paper by the trial court (particularly the signature page of the Appellant) was erroneous and unjustified. Counsel cited EKPOISONG v STATE (2009) 1 NWLR (Pt. 122) 354, B-C.

On the second issue, it was argued on behalf of the Appellant that where an issue is not placed before a court for its determination/finding, then such court lacks the jurisdiction to deal with the said issue. He cited the case of ORJI v ZARIA IND. (1992) 1 SCNJ 29, 49-50. He submitted that the issue of the quantum of damages was not raised or challenged as seen in the Respondent’s Notice of Appeal, and that the lower court acted arbitrarily which was a clear violation of the Appellant’s right to fair hearing, as it raised and determined the issue suo motu, without giving the Appellant or even the parties an opportunity to be heard on the said issue.

Conversely, counsel for the Respondent argued that the award of damages is usually at the discretion of the court which is to be exercised judiciously and judicially, but the appellate court will interfere with such decisions if it is satisfied that the award of damages by the lower court is at both extremes. He submitted that the purpose of the award of damages is to compensate a party for factual loss actually incurred, and not to enrich such party (by exaggerated or unsubstantial claims). In further contending that the lower court was right in reviewing and reducing the amount awarded as damages, counsel likened the said award of the trial court to an award for exemplary damages which is usually awarded whenever a Defendant’s conduct is sufficiently outrageous to merit punishment (such as malice, fraud, cruelty etc), and that same was not the case in this instance. He cited ELIOCHIN NIGERIA LTD v MBADIWE (1986) 1 NWLR (Pt. 14) 47 SC.

Court’s Judgement and Rationale

In its determination of the first issue, the court relied on Order 10 of the Court of Appeal Rules, 2011 to hold that any Respondent who intends to challenge an appeal, shall do so by filing a Notice of Preliminary Objection. A Respondent intending to rely on the said Preliminary Objection to the hearing of an appeal, shall give the Appellant three clear days’ notice before the hearing, setting out the grounds of the objection. Failure of the Respondent to comply with this rule, will lead to the court refusing to entertain the objection, or may adjourn the hearing of same at the cost of the Respondent. Flowing from the above, the court held that the lower court was right to discountenance the objection, as the above provisions were not complied with. Counsel for the Appellant failed to provide the details of his argument in support of the objection, in the Brief of Argument. In reaching this decision, the court placed emphasis on the fact that the court has a duty to always construe a statute or any written law, by looking at the whole provision to ascertain the intention of the draftsman. Rules of Court must be followed to avoid ambush, and to ensure that contending parties do not spring surprises at each other.

Deciding the second issue, their Lordships held that a court is not permitted to raise an issue suo motu, and resolve it without hearing from the parties. Where a court raises an issue suo motu, the parties must be afforded the opportunity of offering arguments on it. A violation of this, is an invasion of the right of fair hearing and miscarriage of justice – ODIASE v AGHO (1972) 3 SC 71. Guided by the authority above, the Supreme Court held that it was wrong for the lower court to have suo motu substantially reduced the damages originally awarded by the trial court in favour of the Appellant without giving parties, (especially the Appellant) an opportunity to be heard on the issue. Consequently, the Supreme Court set aside judgement of the Court of Appeal, which interfered with the award of damages to the Appellant.

Appeal Allowed in Part.

Representation
Chidi B. Nworka for the Appellant.
Tobechi Ogazi for the Respondent.

Reported by Optimum Publishers Limited,Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)