AIYEGBUSI & ORS v. WEMA BANK
(2022)LCN/16128(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, March 22, 2022
CA/L/782/2006
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
1. MR. OLUSEGUN AIYEGBUSI 2. FOREMOST ENTERPRISES (NIG) LTD 3. ADEBAYO MAKANJUOLA TRADING CO APPELANT(S)
And
WEMA BANK PLC RESPONDENT(S)
RATIO
WHETHER OR NOT A STATEMENT OF CLAIM TO A WRIT FOR THE RELIEFS CLAIMED IN THE WRIT OF SUMMONS MAKES THE STATEMENT OF CLAIM COMPLETE
I have considered the arguments very ably agitated by counsel for the parties with the authorities cited. On this issue, the decision of the Supreme Court in OKOMU OIL PALM CO. LTD v ISERHIENRHIEN (2001) 6 NWLR (part 710) 660 at 681 is quite apposite. There the Supreme Court, Per Uwaifo J.S.C. while restating the principle had this to say:
“…I think reference in a statement of claim to the writ for the reliefs claimed in the writ of summons makes the statement of claim complete as it incorporates the writ. It is accepted that the synonym of the word ‘incorporate’ includes roll into one, merge, link with, join together, fuse, assimilate. See Barlett’s Rogef’s Thesaurus 1st Edition paragraph 753.15 at page 663 and paragraph 757.9 at page 668. I am satisfied that Ubaezonu, JCA was right in his observation in OWENA BANK case (supra) at Pp. 714-715 that “where the Statement of claim states that the Plaintiff claims ‘as per writ of summons’, the claim in the writ of summons is incorporated in the statement of claim and becomes part of it. Once there is such incorporation, the statement of claim is taken to contain the relief stated in the writ which statement of claim would otherwise have been defective and contrary to the requirements of Ord. 13 Rule 7…” PER UMAR, J.C.A.
WHETHER OR NOT A LAW FIRM CAN SIGN LETTERS AND DOCUMENTS
It has been stated repeatedly in a legion of judicial authorities, that a law firm, run and operated by Lawyers, cannot, by itself, assume the functions of the lawyers that operate the firm and begin to sign letters and documents (if at all the law firm can do so) in its name without a disclosure of the name of the legal practitioner, duly registered to practice law in Nigeria, as the signatory to the particular process signed. See the case of AGROVET SINCHO PHARM LTD. v. ESTATE OF ENGR. DAHIRU (2013) LPELR – 20364 (CA). There can be no argument that a law firm cannot claim to qualify as a legal Practitioner, registered with Supreme Court, to practice law in Nigeria. It is the individual lawyer(s) in the law firm that can enjoy such privilege and recognition of signing legal processes for a party. See also BELLO v. ADAMU (2011) LPELR 3722 (CA). Also in the case of SLB CONSORTIUM LTD. v. NNPC (2011) 9 NWLR (Pt. 1252) 317, the Supreme Court said:
“It has been argued that COLE v. MARTINS (Supra) is an authority to the effect that a business name under which a lawyer practices would satisfy the requirements of the Legal Practitioners Act. I doubt it, because in law a business name is not accorded legal personality… it is not recognized as a legal person capable of taking or defending actions in the law Courts. In the instant case, ADEWALE ADESOKAN & CO., is not a legal person. It can only function as – ADEWALE ADESOKAN (Trading under the name and style of ADEWALE ADESOKAN & CO.).” PER UMAR, J.C.A.
DEFINITION OF SPECIAL DAMAGES
Special damages has been defined as such damages as the law will not infer from the nature of the act complained of. They are exceptional in character and therefore, they must be claimed specifically and proved strictly that all the losses claimed on every item must have crystallized in terms and value before trial. See the case of AUDU & ORS V. GIMBA & ANOR (2019) LPELR – 47403 (CA), OYEGADE & ORS V. OYENOWO & ANOR (2012) LPELR – 7893 (CA). PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal and cross-appeal are against the judgment of the High Court of Lagos State, Lagos Judicial Division delivered by F.O. Atilade J. on the 18th day of November, 2003. In the said judgment, the trial Court dismissed the Appellants/Cross-Respondents’ (hereinafter referred to as Appellants) claims for being statute barred and also dismissed the Respondent/Cross-Appellant’s (hereinafter referred to as Respondent) counter-claims by reason of its failure to lead evidence in support of the said counter-claims.
BRIEF STATEMENT OF FACTS
By a Writ of Summons and Statement of Claim dated and filed 15th March, 1994, the Appellants instituted an action against the defunct National Bank of Nigeria. The Writ of Summons and Statement of Claim were later amended and in the Amended Writ of Summons dated 30th October, 2001, the Appellants claimed against the Respondent whose name was substituted for that of the National Bank of Nigeria for the following reliefs:
i. “€12,677.28 pence pounds sterling (Twelve Thousand, Six Hundred and Seventy Seven Pounds Sterling and Twenty Eight Pence) or its naira equivalent being the total value of three Letters of Credit established for 2nd Plaintiff. Foremost Enterprises (Nigeria) Ltd (Account No. 5209 Balogun Branch) in 1983 which the Defendant failed to remit to the beneficiary, plus interest thereon at 12% per annum from 1st January, 1984 until the amount is fully paid, less the sum of N36,000.00 outstanding on the 3rd Plaintiff’s account no. 1591 at Balogun Branch.
ii. Return of the 1st Plaintiff’s Deed of Conveyance on his property at 15, Mafowoku Street, Akoka, Lagos and his Life Insurance Certificate deposited to secure overdraft on 3rd Plaintiff’s Account No. 1591 at Balogun Branch, OR An Order that the Defendant at its own expense obtain for the Plaintiff, Certified True Copies if these documents cannot be found.
iii. N100, 000.00 (One Hundred Thousand Naira) damages for negligence and/or failure of the Defendant in remitting the said €12,677.28 pence pounds sterling to beneficiary (Survey Exporters (Africa) Limited of Liverpool).
iv. A sum of N412, 000.00 (Four Hundred and Twelve Thousand Naira) being the amount the Plaintiff spent to buy at the alternative market the €4,297.22 pence on Letter of Credit No. O/CR/83/636 which the Defendant failed or neglected to remit to Plaintiff’s overseas suppliers.
v. A sum of N60,000.00 (Sixty Thousand Naira) being the expected profit the Plaintiff lost due to the cancellation of the orders upon which Letters of Credit Nos. O/CR/83/609 and O/CR/83/736 was opened.
vi. An order declaring null and void and cancelling any debits entered against the 2nd Plaintiff’s account no. 5209 as a result of changes in the exchange rate of the Naira concerning the said Letters of credit.”
(See pages 58-59 and 52-53 of the Record for the Amended Writ of Summons and 2nd Amended Statement of Claim),
The case of the Appellants as Plaintiffs at trial was that sometimes in 1983, at the request of the 1st Appellant, the Respondent opened three (3) Letters of Credit for the 2nd Appellant in the total value of €12,677.28 (Twelve Thousand, Six Hundred and Seventy-Seven Pounds Sterling and Twenty Eight Pence) through its Account No. 5209 made up as follows:
(i) Letter of Credit No. O/CR/83/636 for €4,297.22 pence
(ii) Letter of Credit No. O/CR/83/609 for €4,190.03 pence
(iii) Letter of Credit No. O/CR/83/736 for €4,190.03 pence.
The Appellants stated further that the said sum of €12,677.28 pence was to be remitted to Survey Exporters (Africa) Limited of Liverpool, United Kingdom for the importation of building paints. That these Letters of Credit opened on the account of the 2nd Appellant were fully backed up by cash and they were to mature in 1984.
In their further narration of the facts culminating into the institution of the suit, the Appellant stated that the Respondent failed and or neglected to remit the funds under the Letters of Credit despite various letters of demand written by the Appellants and the Exporter in the United Kingdom. That when the issue was becoming rather embarrassing, the 1st Appellant had to source for the Naira equivalent of €4,297.20 (covered by Letter of Credit No. O/CR/83/636) to pay the representative of the Exporters at the black market which totalled N412, 000.00.
The Appellants stated further that in view of the inability of the Respondent to remit the monies under the three Letters of Credit and having settled one of them personally, the overseas suppliers cancelled the two other Letters of Credit namely:- Nos. O/CR/83/609 and O/CR/83/736 for €4,190.03 respectively and the 1st Appellant lost the estimated profit of N60,000.00 (Sixty Thousand Naira) he ought to have made on the two Letters of Credit.
According to the Appellants, the Account in the name of 3rd Appellant Adebayo Makanjuola Trading Company Limited (Account No. 1591) was in credit up till 1984 but was later on, at a debit balance of N56, 000.00 due to loan/credit facilities granted by the Respondent to the 3rd Appellant on its account. The Appellants stated further that the indebtedness was reduced to N36,000.00 by the end of August 1992. That in order that the outstanding indebtedness in the 3rd Appellant’s account could be settled and since the Respondent was holding the funds meant as Naira cover for the Letters of Credit, the 1st Appellant wrote to the Respondent to credit the account of the 3rd Appellant with the funds in order to offset the indebtedness on the account and to also return the title deed and the Life Insurance Policy used as security for the banking facility.
The Appellants averred that the Respondent neither credited the account of the 3rd Appellant with the funds nor did it return the 1st Appellant’s title deed and Life Insurance Policy. That rather than do the needful, the Respondent by a letter dated 17th April, 1989 written by its Assistant Manager (Refinancing) and addressed to their Solicitors inter alia, asked them to confirm from the beneficiaries if they have received the proceeds as the letters of credit had been refinanced. That sequel to the Respondent’s letter addressed to the Solicitors acting on their behalf, by a letter dated 22nd May, 1989, they wrote directly to the Respondent to inform her that the transaction still remained outstanding.
The Appellants further stated that the Respondent still refused to remit the funds under the Letters of Credit to the overseas suppliers, failed to return the title deed and Life Insurance Policy to the 1st Appellant and as a result, they instituted an action at the trial Court claiming for the reliefs stated on the face of the Amended Writ of Summons.
The Respondent in her defence denied knowing the 2nd and 3rd Appellants and that it was the 1st Appellant who opened two accounts in the Business names of Foremost Enterprises and Adebayo Makanjuola Trading Co. The Respondent also filed a Counter-Claim for the alleged indebtedness of the 1st Appellant under the two (2) Accounts and claimed interest at the rate of 21% per annum to be calculated from the 1st of April, 1992 and 1st June, 1992 respectively till the judgment of the trial Court is delivered and at the same rate from the date of judgment till the whole sum is liquidated.
(See pages 64-65 of Record for the Statement of Defence and Counter-Claim of the Respondent).
During trial, the 1st Appellant testified as sole witness for the Appellants. The 1st Appellant also tendered Exhibits A-A2, B, C, D, E and F during his examination-in-chief whilst Exhibit G was tendered by the Respondent through the 1st Appellant.
Upon the close of trial and filing of final addresses by counsel for the parties, the learned trial Judge dismissed the claims of the Appellants in its entirety on the following grounds:
1. That the 2nd and 3rd Appellants lacked the necessary locus standi to institute the action.
2. That the 1st Applicant’s claims was statute barred; and
3. That the claim for N412, 000.00, being a special damage, was not strictly proved.
The Counter-Claim of the Respondent was also dismissed because the Respondent did not lead any evidence to prove it.
Dissatisfied with the judgment of the lower Court, the Appellants filed a Notice of Appeal. (See pages 164-167). The Respondent also filed a Notice of Appeal. See pages 168-169 of the Record.
However, this Court on the 19th September, 2019 granted the Appellants leave to amend their Notice of Appeal. The Amended Notice of Appeal is dated and filed on the 25th September, 2019.
In the Amended Notice of Appeal filed on 25th September, 2019, the Appellants raised the following grounds to wit:
“GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law when she held that the 1st Plaintiff/Appellant’s claim being premised on negligence and breach of contract was clearly statute-barred and thereby came to a wrong decision in law.
GROUND TWO
The learned trial Judge erred in law when she held that the Plaintiffs’ claims in the suit herein is statute barred and same is accordingly dismissed in its entirety and thereby came to a wrong decision in law.
GROUND THREE
The learned trial Judge erred in law when she dismissed the Plaintiffs’ claim for the sum of N412,000.00 on Letter of Credit No O/CR/83/636 on the ground that the 1st Plaintiff neither tendered a receipt or acknowledgment of receipt of the said sum.
GROUND FOUR
The learned trial Judge erred in not adjudication on the Plaintiffs claims Nos. 2 and 6 to wit:
a. Return of the 1st Plaintiff’s Deed of Conveyance on his property at 15, Mafowoku Street, Akoka, Lagos and his Life Insurance Certificate deposited to secure overdraft on 3rd Plaintiff’s Account No. 1591 at Balogun Branch and
b. An order declaring null and void and cancelling any debits entered against the 2nd Plaintiff’s account no. 5209 as a result of changes in the exchange rate of the Naira concerning the said Letters of credit.
And thereby deprived the Plaintiffs their right to fair hearing as enshrined under the 1999 Constitution of the Federal Republic of Nigeria (As Amended).
GROUND FIVE
The learned trial Judge erred in law when she held that the 2nd and 3rd Plaintiffs/Appellants have no locus standi to institute this action and by striking out their names for misjoinder and she thereby came to a wrong decision in law.
GROUND SIX
The lower Court lacked jurisdiction to entertain the Statement of Defence and Counter-Claim of the Cross-Appellant when same was not signed by a Legal Practitioner and same was incompetent.”
In due observance with the Rules and Practice of this Court, parties filed and exchanged their respective briefs of arguments. The Appellants’ brief of argument is dated and filed on 27th August, 2020. The Respondent/Cross-Appellant’s brief is dated and filed 7th January, 2021. The Appellants/Cross-Respondents’ Reply Brief of Argument is dated and filed 3rd March, 2021 and lastly, the Respondent/Cross-Appellant’s Reply to the Appellants/Cross-Respondents’ Brief is dated and filed 26th March, 2021. The Appellants/Cross Respondents’ processes were settled by TOLULOPE TAIWO (MRS) while the Respondent/Cross-Appellant’s processes were settled by ADEMOLA OLOWOYEYE ESQ.
For the determination of the appeal, the Appellants’ counsel formulated five issues as follows:
i. “Whether the learned trial Judge was right to assume jurisdiction in respect of the Respondent’s Counter-Claim incorporated in the Statement of Defence dated 21st January, 2002 when the said process was signed in the name of a Law Firm. Ground 6.
ii. Whether the learned trial Judge was right when she stated that the Appellants’ claims were statute barred. Grounds 1 and 2.
iii. Whether the Appellants were not entitled to their claim of N412,000.00 which was the naira equivalent of €4,297.22 (at the black market rate) paid to the representative of the overseas suppliers in Lagos in satisfaction of the amount on Letter of Credit O/CR/83/636. Ground 3.
iv. Whether the learned trial Judge was right not to have taken any decision on some parts of the Appellants’ claims which were live issues before the Court. Ground 4.
v. Whether the learned trial Judge was right when she held that the 2nd and 3rd Appellants have no locus standi to institute the action. Ground 5.
The Respondent’s counsel merely adopted the issues formulated by the Appellants’ counsel for the determination of the main appeal.
Before delving into the submissions and arguments of counsel for the parties in the determination of the appeal, it is imperative to state that the Respondent’s counsel raised a preliminary objection in the Respondent/Cross-Appellant’s brief of argument. The sole ground of the objection is that the Appellants failed to claim any relief in their Amended Statement of Claim and therefore abandoned their claims.
In line with the settled position of the law that where a notice of preliminary objection is filed and moved, the Court is bound to consider the preliminary objection before venturing into the main appeal and/or cross-appeal as the case may be. Premised on this, I will first deal with the preliminary objection.
ARGUMENT FOR AND AGAINST THE OBJECTION
The crux of the Respondent’s objection is that the Appellants abandoned their claims, having failed to state the said claims in their 2nd Amended Statement of Claim. Counsel submitted that the Statement of claim must state specifically the reliefs sought by the Plaintiff and cannot claim as per the writ of summons. He argued that the law is settled that a Statement of Claim supersedes the Writ and any relief claimed on the Writ but not contained in the Statement of Claim will be deemed abandoned. He cited the cases of STOWE VS. BENSTOWE (2012) 9 N.W.L.R. (PART 1306) PG. 451, ENIGBOKAN VS. A.I.I. CO. (NIG) LTD. (1994) 6 NWLR (PT. 348) P. 1. AT PAGE 20 PARA F, LAHAN AND ORS. VS. LAJOYETAN AND ORS (1972) NSCC P. 460 (1972) 6 SC 190, OTANIOKU VS. ALLI (1977) NSCC P. 452, (1977) 11-12 SC 9, UDECHUKWU VS. OKWUKA (1956) 1 FSC P. 71, (1956) SCNLR 189, AJAGUNGBADE III & ORS. VS. LANIYI & ORS. (1999) 13 NWLR (PT. 633) P. 92.
In the final analysis of the objection, counsel submitted that the Appellants, having stated in their Amended Statement of Claim that they claimed as per their Writ of Summons are deemed to have abandoned the said claims. He therefore urged this Court to strike out the appeal for being incompetent.
In Response to the objection, counsel for the Appellants submitted that the general rule is that the Statement of Claim supersedes the Writ of Summons. That once the Statement of Claim is filed, it supersedes the Writ of summons and any claim or relief contained in the Writ of Summons which is not repeated or reproduced in the Statement of Claim is deemed abandoned.
Counsel submitted further that it has been held in a plethora of authorities that where reference in a Statement of Claim is made to the Writ for reliefs claimed, the Statement of Claim is complete as it incorporates the Writ. Reliance was placed on GARAN V. OLOMU (2013) 11 NWLR (PT. 1365) PG 227 at PG. 250 PARAS A-B, OKOMU Oil V. ISERHIENHIEN (2001) 6 NWLR (Pt. 710) Pg. 660 at Pg. 681 Paras C-F, COLLEGE Of EDUCATION, WARRI V. ODEDE (1999) 1 NWLR Pt. 586 at Pg. 253.
Further to the above submission, counsel contented that the Courts have been encouraged in a plethora of authorities to shift away from technicalities in favour of substantial justice. Reliance was placed on IN REGT. TRUSTEES A.O.N V. NAMA (2014) 8 NWLR (PT. 1408) PG 1 at PG 59 PARAS, SHUAIBU V. MUAZU (2014) 8 NWLR (PT. 1409) PG 207 at PP 275, PARAS C-D AND AKPAN V. O.A TRC (2015) 16 NWLR (PT. 1486) PG 431 at PP 441, PARA F.
On the whole, counsel urged this Court to dismiss the objection for lacking in substance.
RESOLUTION OF PRELIMINARY OBJECTION
The Respondent’s objection is premised on the fact that the Appellants failed to seek any relief in their 2nd Amended Statement of Claim and therefore abandoned the claims contained in the Amended Writ of Summons.
The law is trite to the effect that the Statement of Claim supersedes the Writ of Summons and any relief sought in the Writ of Summons not sought in the Statement of Claim is deemed abandoned.
It is clear that the Appellants did not state their claims in their 2nd Amended Statement of Claim but just claimed as per their Writ of Summons.
I have considered the arguments very ably agitated by counsel for the parties with the authorities cited. On this issue, the decision of the Supreme Court in OKOMU OIL PALM CO. LTD v ISERHIENRHIEN (2001) 6 NWLR (part 710) 660 at 681 is quite apposite. There the Supreme Court, Per Uwaifo J.S.C. while restating the principle had this to say:
“…I think reference in a statement of claim to the writ for the reliefs claimed in the writ of summons makes the statement of claim complete as it incorporates the writ. It is accepted that the synonym of the word ‘incorporate’ includes roll into one, merge, link with, join together, fuse, assimilate. See Barlett’s Rogef’s Thesaurus 1st Edition paragraph 753.15 at page 663 and paragraph 757.9 at page 668. I am satisfied that Ubaezonu, JCA was right in his observation in OWENA BANK case (supra) at Pp. 714-715 that “where the Statement of claim states that the Plaintiff claims ‘as per writ of summons’, the claim in the writ of summons is incorporated in the statement of claim and becomes part of it. Once there is such incorporation, the statement of claim is taken to contain the relief stated in the writ which statement of claim would otherwise have been defective and contrary to the requirements of Ord. 13 Rule 7…”
On the strength of the above, the invitation to dismiss the claim on the ground that in the Statement of claim, the Appellants merely claimed ‘as per their writ of summons’ is an invitation to give credence to technical justice.
The Courts have been advised to avoid technicalities in the administration of justice. See BELLO v. A.G. OYO STATE (1986) 5 NWLR (Part 45) 828 at 885-886, NNEJI v. CHUKWU (1988) 3 NWLR (Part 81) 186 at 188.
I therefore find no merit in the objection, same is hereby dismissed. Having dismissed the objection for lacking in merit, I shall proceed to consider the arguments of counsel in respect of the appeal and cross-appeal.
DETERMINATION OF THE APPEAL ON THE MERITS
In determining this appeal, I shall adopt all the issues distilled by the Appellants’ counsel and adopted the Respondent’s counsel. However, I shall slightly re-arrange them to enhance the just determination of the said issues. I shall be resolving the issues in the following order:
i. “Whether the learned trial Judge was right to assume jurisdiction in respect of the Respondent’s Counter Claim incorporated in the Statement of Defence dated 21st January, 2002 when the said process was signed in the name of a Law Firm. Ground 6.
ii. Whether the learned trial Judge was right when she held that the 2nd and 3rd Appellants have no locus standi to institute the action. Ground 5.
iii. Whether the learned trial Judge was right when she stated that the Appellants’ claims were statue barred. Grounds 1 and 2.
iv. Whether the Appellants were not entitled to their claim of N412,000.00 which was the Naira equivalent of €4,297.22 (at the black market rate) paid to the representative of the overseas suppliers in Lagos in satisfaction of the amount on letter of Credit O/CR/83/636. Ground 3.
v. Whether the learned trial Judge was right not to have taken any decision on some parts of the Appellants claims which were live issues before the Court. Ground 4.”
In the analysis of the issues raised in this appeal, regard will not be made to the Appellants’ Reply Brief containing submissions and arguments in response to the issues raised in the Respondent/Cross-Appellant’s brief. I am of the view that the said brief is just a mere rehash of all the submissions contained in the Appellants’ brief.
The essence of a reply brief is not to reopen argument already canvassed. It is to reply to new issues that have arisen in the Respondent’s brief of argument. See KOMOLAFE V. FRN (2018) LPELR – 44496 (SC).
ARGUMENTS AND SUBMISSIONS OF COUNSEL
ISSUE NO.1
Whether the learned trial Judge was right to assume jurisdiction in respect of the Respondent’s Counter-Claim incorporated in the Statement of Defence dated 21st January, 2002 when the said process was signed in the name of a Law Firm?
On this issue, counsel for the Appellants submitted that the Respondent’s Statement of Defence and Counter-Claim was signed in the name of “DEMOLA OLOWOYEYE & CO” and thus in flagrant violation of Section 2(1) & 24 of the Legal Practitioners Act.
On the effect of a process issued in the name of a firm and not in the name of a legal practitioner, counsel referred to NIGERIAN ARMY V SAMUEL (2013) 14 NWLR (PT. 1375) 466 AT 482-483 paras. H-H, OKETADE V ADEWUNMI (2010) 8 NWLR (pt. 1195) 63, OKAFOR V NWEKE (2007) 10 NWLR (pt. 1043) 521, FBN PLC V MAIWADA (2013) 5 NWLR (pt.1348) 444 AND OLAGBENRO V OLAYIWOLA (2014) 17 NWLR (pt. 1436) 313 at pp. 358-368 paras. E-F.
Counsel submitted that the operative word used in the decisions referred to above is “any process” and was not limited to originating process. That the Counter-Claim of the Respondent was the process that initiated the reliefs/claims of the Respondent before the lower Court. Counsel submitted further that if there was no Counter-Claim, the reliefs of the Respondents which the lower Court made pronouncement on could never have been made because it was not initiated by due process of law.
In the final analysis of issue no.1, counsel submitted that the learned trial Judge was wrong to have pronounced on the Respondent’s Statement of Defence and Counter-Claim because there was indeed no valid Statement of Defence and Counter-Claim before the Court to be pronounced upon.
In conclusion, he urged this Court to strike out the Statement of Defence and the Counter-Claim filed by the Respondent.
In response to Appellants’ submissions regarding the competence of the Statement of Defence and Counter-Claim, counsel for the Respondent at page 5 of the Respondent/Cross-Appellant’s brief admitted that the submissions canvassed by the Appellants represents the position of the law on the issue under consideration. Counsel however submitted further that the principle admits of further reconsideration in some circumstances such as where a breach of fundamental right of fair hearing comes up; or where the provision of a rule of Court and judicial pronouncements would tend to constitute a conflict with the provisions of the Constitution.
It was the submission of counsel for the Respondent that where either of the foregoing comes to the fore, the rules of Court, and the law, and the judicial pronouncements will yield to the operation of the Constitution. The Court was referred to GOV. OYO STATE V. FOLAYAN (1995) 8 N.W.L.R. (PART 413) PG. 292, 327 PARAS C – D, ISHOLA V. AJIBOYE (1994) 6 NWLR (Pt. 352) 506 at 621, (1994) 19 LRCN.
Counsel submitted further that under the 1999 Constitution, the citizens of Nigeria are entitled to a right of fair hearing and that the interpretation of the provisions of Section 24 of the Legal Practitioners Act without recourse to the provisions of Section 23 of Legal Practitioners Act will deprive a citizen of Nigeria the right of fair hearing. He contended that Section 24 defines a Legal Practitioner as a person whose name is on the roll while Section 23 of the Legal Practitioners Act provides for what constitutes an offense under the Act. That throughout the proceedings in this case, it was Ademola Olowoyeye in person, and or his colleagues in Demola Olowoyeye & Co that appeared for the Respondent. Counsel’s submission is to the effect that there was no allegations that Mr. Olowoyeye was not a legal practitioner, and there was an entity called Demola Olowoyeye & Co who was appearing for the Respondent. That in the absence of the allegations, it will amount to miscarriage of justice to the Respondent and a breach of its Constitutional right to fair hearing to accede to the argument of the Appellant.
Counsel submitted also that the decision of the Supreme Court in HERITAGE BANK LTD. V. BENTWORTH FIN. (NIG) LTD (2018) 9 NWLR (Pt. 1625) effectively estopped the Appellants from raising the issues of the application of the decision in OKAFOR V. NWEKE (supra). Counsel therefore submitted that in the circumstances, the statement of defence and counter-claim cannot be invalidated.
RESOLUTION OF ISSUE NO. 1
It has been stated repeatedly in a legion of judicial authorities, that a law firm, run and operated by Lawyers, cannot, by itself, assume the functions of the lawyers that operate the firm and begin to sign letters and documents (if at all the law firm can do so) in its name without a disclosure of the name of the legal practitioner, duly registered to practice law in Nigeria, as the signatory to the particular process signed. See the case of AGROVET SINCHO PHARM LTD. v. ESTATE OF ENGR. DAHIRU (2013) LPELR – 20364 (CA). There can be no argument that a law firm cannot claim to qualify as a legal Practitioner, registered with Supreme Court, to practice law in Nigeria. It is the individual lawyer(s) in the law firm that can enjoy such privilege and recognition of signing legal processes for a party. See also BELLO v. ADAMU (2011) LPELR 3722 (CA). Also in the case of SLB CONSORTIUM LTD. v. NNPC (2011) 9 NWLR (Pt. 1252) 317, the Supreme Court said:
“It has been argued that COLE v. MARTINS (Supra) is an authority to the effect that a business name under which a lawyer practices would satisfy the requirements of the Legal Practitioners Act. I doubt it, because in law a business name is not accorded legal personality… it is not recognized as a legal person capable of taking or defending actions in the law Courts. In the instant case, ADEWALE ADESOKAN & CO., is not a legal person. It can only function as – ADEWALE ADESOKAN (Trading under the name and style of ADEWALE ADESOKAN & CO.).”
I am not unmindful of the fact that there are so many decisions of this Court and of course that of the Supreme Court on the issue under consideration. The Supreme Court, per Ejembi Eko, JSC in the case of HERITAGE BANK LTD. V. BENTWORTH FIN. (NIG) LTD cited by counsel for the Respondent held that:
“In spite of the fact that the Statement of Claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of Legal Practitioners, the appellant as defendant, condoned the defective process. They participated in the proceedings and evidence arising from the statement of claim was called after the statement of defence joining issues with the defective statement of claim was filed. Judgment of the trial Court, based on the evidence elicited from the statement of claim, was delivered without objection. Even at the Court of Appeal, no issue was made out of the alleged defective statement of claim. The Appellant as the defendant, had clearly condoned the defective statement of claim and waived his right to the defective process. The right of the defence to object to the irregularity ex facie the statement of claim is a waivable right, being a private right.”
However, in AJIBODE & ORS V. GBADAMOSI & ORS (2021) 7 NWLR (Pt. 1776) 475, the Supreme Court in a spilt decision of 4:1 with Ngwuta, JSC (of blessed memory) reading the leading judgment, Okoro, Nweze, Abba Aji, JJSC concurring and Eko, JSC (dissenting) held as follows:
“The jurisdiction of the Court remains dormant until the claim before the Court ignites it. If the claim has not been brought before the Court by due process the claim cannot invoke the Court’s jurisdiction, and the Court labours in vain in entertaining the suit. This is the case here. The trial Court lacked jurisdiction to entertain the suit nor has the Court below the competence to determine the appeal arising from the proceedings which are void.
My noble Lords, I am not unaware of contrary decision by eminent jurists of the Court below and of the apex Court. The facts of this appeal appear to be similar to the facts in IBB Industries Ltd v. Mutunci (Nig) Ltd. (2012) 6 NWLR (Pt. 1297) 487 CA and Heritage Bank Ltd. V. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420 SC.
The Court of Appeal in IBB’s case relied on the doctrine of waiver and dismissed the appeal. Also in the Heritage Bank’s case this Court dismissed the appeal on the same doctrine.
In each case, it would appear that the signature by a law firm was treated as an irregularity which the appellants waived by taking part in the proceedings, being aware of the defects therein.
In the present appeal, though the appellants took part in the proceedings and neither raised the issue that the initial process was signed by a law firm in the trial nor in the Court of Appeal, the defect cannot be treated as an irregularity that a party can waive. A party cannot waive the breach of a law made by the National Assembly and it is never late in any proceedings to raise the issue of jurisdiction.”
The decision of the Supreme Court above is in tandem with its earlier decisions in OKEKE V. OKAFOR (Supra), SLB CONSORTIUM LTD. v. NNPC (2011) 9 NWLR (Pt. 1252) 317, which were decided in 2007 and 2011 respectively.
The Respondent’s Statement of Defence and Counter-Claim being a legal process was signed by “DEMOLA OLOWOYEYE & CO”, having not disclosed the name of a legal Practitioner, known to law, as the signatory, remains a worthless tissue of paper which could not have invoked the jurisdiction of the trial Court to consider the Statement of Defence and Counter-Claim.
I am also of the view that the submission of the Respondent’s counsel on the unconstitutionality of the Section 2(1) and 24 of the Legal Practitioners Act lacks substance. Section 2(1) of the Act only defines a person who is entitled to practice law as a Barrister and Solicitor in Nigeria while Section 24 only defines who a legal practitioner in Nigeria is. I therefore struggle to find the correlation of these provisions and how inconsistent they are with the provisions of Section 36 of the Constitution.
Without further ado, I resolve this issue in favour of the Appellants and against the Respondent. Consequently, the Respondent’s statement of defence and counter-claim is hereby struck out.
ISSUE NO. 2
Whether the learned trial judge was right when she held that the 2nd and 3rd Appellants have no locus standi to institute the action?
Counsel for the Appellants submitted that the initial way of determining whether a Claimant has the necessary locus standi to intiate a suit, is to examine and reflect on the Statement of Claim. That the Statement of Claim must disclose a cause of action vested in the Plaintiff regarding his right or obligations which have been violated in the subject matter. He cited the case of OLAGBEGI V OGUNOYE II (1996) 5 NLWR (PT. 448) 332 AT P. 352, PARAS. F – G.
Counsel referred to paragraph 2 of the 2nd Amended Statement of Claim and the evidence of the 1st Appellant at page 118 lines 6-7 of the Record wherein he stated that he is Proprietor and Managing Director of Foremost Enterprises Nig. Ltd and Adebayo Makanjuola Trading Company, the 2nd and 3rd Appellants in this case.
He submitted further that contrary to the findings of the learned trial Judge that the evidence before the Court was to the effect that the two accounts maintained by the 1st Appellant were in business names, the evidence before the Court as could be gleaned from the Record was that the 2nd Appellant was a Limited Liability Company whilst the 3rd Appellant was a business name. As regard the 3rd Appellant, counsel conceded that it carried on business with the Respondent as a Business Name.
In the circumstance, he urged this Court to resolve this issue in favour of the Appellants only to the extent that the 2nd Appellant had the necessary locus standi to initiate the action at the lower Court and before this Court.
In response, counsel for the Respondent submitted that at page 50 of the records and particularly paragraph 3 wherein the Appellants stated that the 1st Appellant as owner of the two companies operates two accounts with the Balogun Branch of the Respondent as follows:
i. Account No. 1591 – Adebayo Makanjuola Trading Company
ii. Account No. 5209 – Foremost Enterprises
Counsel submitted that in the face of the foregoing, the trial Court was right when it held that there was no evidence before it proving that the 2nd and 3rd Appellants which are limited liability companies ever operated any bank account with the Respondent. That the 2nd Appellant may have been incorporated and acquired a status of being able to sue and being sued but with respect to all the subject matter in this case, the 2nd Appellant does not have a right of action against the Respondent.
On the whole, he urged this Court to resolve this issue in favour of the Respondent and against the Appellants.
RESOLUTION OF ISSUE NO.2
It is settled law that what the Court will look at in order to determine whether or not a plaintiff has locus standi is the originating process by which an action is commenced. See DISU VS AJILOWURA (2006) 14 NWLR PT. 1000 PAGE 783 at 813 814 (F-B).
The Appellants’ counsel admitted that the 3rd Appellant has no locus, therefore the trial Court was right to have struck out its name for misjoinder.
However, in determining whether the 2nd Appellant has locus standi, it must be established that the 2nd appellant has sufficient interest in the matter; that its civil rights or obligations have been or are in danger of being violated or infringed and that it has a justiciable dispute with the Respondent. These three conditions must co-exist.
As regards the locus standi of the 2nd Appellant, it was averred as follows in the 2nd Amended Statement of Claim that:
“1. The 1st Proprietor and Managing director of the 2nd and 3rd Plaintiff companies respectively.
2. The 2nd and 3rd Plaintiff companies are trading companies the 2nd Plaintiff was duly incorporated under the Companies Decree on 21st January, 1983 No. 52349.
3. The Plaintiff as the owner of the two companies operates two accounts with the Balogun Branch of the Defendant as follows:
i. Account No. 1591 – Adebayo Makanjuola Trading Company
ii. Account No. 5209 – Foremost Enterprises.
4. The 1st Plaintiff deposited his Deed of Conveyance on his property at 15, Mafowoku Street, Akoka, Lagos and his Life Insurance Certificate with the Defendant to secure an overdraft for the 3rd Plaintiff Adebayo Makanjuola Trading Company (Account No.1591).
5. The said Account No. 1591 was kept normal up to 1984 but was later at a deficit of about N56,000 by August 1992 when a payment of N20,000 was promptly made to reduce the outstanding balance to N36,000 at the end of August 1992.
6. In 1983, 3 Letter of Credit for total value of £12,677.28 pence Pound Sterling was established for the 2nd Plaintiff (Foremost Enterprises (Nig.) Ltd.) through the Defendant on said A65ccount No. 5209 as follows:
Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling
Letter of Credit No. 0/CR/83/609 for £4, 190.03 pence pound sterling
Letter of Credit No. 0/CR/83/736 for £4,190.03 pence pound sterling.
7. The said £12,677 pence pound sterling was to be remitted to Surrey Exporters (Africa) Ltd., of Liverpool in England for the importation of building paints.
8. The said Letters of Credit was to mature in January 1984 and was fully paid for.
9. The Defendant failed to remit the said money to the beneficiary for no just cause even though they were aware of its maturity date and the purpose of the transaction.”
Notwithstanding the state of the pleadings above, evidence on the record reveals that the letters of credit was established by the 1st Appellant trading under the name and style of “Foremost Enterprises” and not “Foremost Enterprises Nigeria Limited” which is a limited liability company. Therefore, if the letters of credit was established by the 1st Appellant trading under the name and style of “Foremost Enterprises”, why should “Foremost Enterprises Nigeria Limited”, a company with a distinct legal personality be made a party to the suit?
On this note, I have struggled to see 2nd Appellant’s interest in the matter or that its civil rights or obligations have been or are in danger of being violated or infringed and that it has a justiciable dispute with the Respondent. The Appellants’ counsel made reference to the certificate of incorporation of Foremost Enterprises Nigeria Limited at page 11 of the record of appeal. However, a close perusal of the record reveals at page 6, the Certificate of Registration of Foremost Enterprises. It is my opinion that even if the 2nd Appellant was later registered as a limited company and Foremost Enterprises ceased to exist, there is no evidence to show that steps were taken to have the name on Account number 5209 opened and operated in the name of Foremost Enterprises changed to Foremost Enterprises Nigeria Limited.
The trial Court therefore, cannot be faulted when it held at page 147 of the record of appeal that:
“On the 1st issue for determination, the evidence before this Honourable Court is to the effect that the two account maintained by the Plaintiff were in his business names. There is no evidence before this Honourable Court to prove that the 2nd and 3rd Plaintiffs, which are limited liability companies ever operated any bank account with the Defendant. Consequently, I have no difficulty in arriving at the conclusion that the 2nd and 3rd Plaintiffs lack the locus to institute this action. Accordingly, the names of the 2nd and 3rd Plaintiffs are hereby struck out for misjoinder.”
In my final analysis of this issue, I resolve same in favour of the Respondent and against the Appellants.
ISSUE NO.3
Whether the learned trial Judge was right when she stated that the Appellants’ claims were statute barred?
Counsel submitted that in arriving at the decision that the Appellants’ claims were statute-barred, the learned trial Judge only dealt with one of the claims before her as it related specifically to the Letters of Credit, and lumping all other claims along with it.
Counsel submitted further that in deciding whether an action is statute-barred, the Courts are enjoined to look at the Statement of Claim and not the averments in the Statement of Defence or evidence during trial. Reliance was placed on BRITISH AIRWAYS PLC V AKINYOSOYE (1995) 1 NWLR (PT. 374) 722 AT 730 AT PARAS, B-C AND EGBE V ADEFARASIN (NO. 2) 1987 1 NWLR (PT. 47) 1 AT 20
It was the contention of counsel that the trial Court fell into the error of holding that the action was statute-barred because it was carried away by that fact that the Appellants pleaded that Letters of Credit were to mature in 1984. That this however, was not the claim of the Appellants in the Writ of Summons and 2nd Amended Statement of Claim at pages 46-47 and 52-53 of the Record of Appeal. He submitted that none of the claims of the Appellants relate to damages for cancellation of the Letters of Credit so as to make the fact that the said Letters of Credit were cancelled in 1984 material for the purpose of calculating (when time starts to run for purposes of limitation) the date from 1984 to 1994 when the action was filed.
Counsel submitted further that the cause of action in this matter can only arise, for the purpose of period of limitation when the Appellants made the demand for the return of their money and that going by the averments in paragraph 13 of the 2nd Amended Statement of Claim at page 53 of the Record, time begins to run against the Appellants from 14th June, 1989. The Appellants’ counsel referred this Court to Exhibit A2 dated 17th April, 1989 at page 152 of the Record wherein the Respondent requested the Solicitors to the Appellants to confirm from the Beneficiaries if they had received the proceeds, as the Letter of Credit had been refinanced.
Counsel submitted that Exhibit B dated 14th June, 1989 at page 153 of the Record is the letter before this action and therein the Appellants catalogued all the anomalies in the transaction. That the Cause of action arose from this date and not 1984 as stated by the learned trial Judge and that in view of the fact that the action culminating in this appeal was founded on simple contract, between three Customers and their Bank, and going by the provision of Section 8 of the Limitation Law, Cap 118 Laws of Lagos State, this action can only be statute-barred if it was filed six (6) years after the cause of action accrued.
Counsel therefore urged this Court to resolve this issue in favour of Appellants and against the Respondent.
In response to the said issue, counsel for the Respondent submitted that by 1984 when letters of credit were canceled, a period of 10 years had lapsed between the time the letters of credit were cancelled and when the action was filed.
Counsel submitted that the Appellants’ contention to the effect that their cause of action arose only after they had made a demand for the return of their money cannot be correct. That the demand is by itself steps towards finding a remedy to right a wrong and it cannot but have reference to when the wrong itself occurred. He submitted further that the wrong must first occur before the remedy for it would follow.
Counsel submitted that when the Respondent wrote Exhibit A2, the Appellants had gotten two benefits which are crediting the Appellant with money that they no longer had; and refinancing their imports. He further submitted that there was nothing in Exhibits A-A2, B & G that shifted the date when the Appellant alleged they were wrong from 1984 and they cannot at the appeal stage set up a new date for cause of action different from the process at the trial Court.
RESOLUTION OF ISSUE NO. 3
The crux of this issue is whether the trial Court was right to have held that suit of the Appellants was statute-barred. Limitation statutes, just like equitable doctrines of laches, are designed to promote justice by preventing surprises by reviving a claim or cause of action that has been allowed to lapse. The purpose of such a statute is to require diligent prosecution of known claims thereby providing finality and predictability in legal affairs.
The law is settled that in determining whether a case is statute-barred or not, the Court is not allowed to venture into any process save for the Statement of Claim and the Court is to look out for when the cause of action arose and the date the Writ of Summons was filed. In the 2nd Amended Statement of Claim at pages 52 – 53 of the record of appeal, the Appellants averred that:
“6. In 1983, 3 Letter of Credit for total value of £12,677.28 pence Pound Sterling was established for the 2nd Plaintiff (Foremost Enterprises (Nig.) Ltd.) through the Defendant on said Account No. 5209 as follows:
Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling
Letter of Credit No. 0/CR/83/609 for £4, 190.03 pence pound sterling
Letter of Credit No. 0/CR/83/736 for £4,190.03 pence pound sterling.
7. The said £12,677 pence pound sterling was to be remitted to Surrey Exporters (Africa) Ltd., of Liverpool in England for the importation of building paints.
8. The said Letters of Credit was to mature in January 1984 and was fully paid for. 9. The Defendant failed to remit the said money to the beneficiary for no just cause even though they were aware of its maturity date and the purpose of the transaction.
10. The Plaintiff avers that when the Defendant failed to remit the said £4,297.22 pence (FOUR THOUSAND, TWO HUNDRED AND NINETY-SEVEN POUNDS TWENTY-TWO PENCE) sterling, on Letter of Credit No. 0/CR/05/636 to the oversea Suppliers, the Oversea Supplier came to Nigeria for payment and the plaintiff had to pay him N412,000 Naira (FOUR HUNDRED AND TWELVE THOUSAND NAIRA) which was the equivalent of the said £4,297.22 pence in the then available market.
11. The Plaintiff further avers that due to the failure and/or negligence of the Defendant the order connected with Letters of Credit Nos. 0/CR/837609 and NO. 0/CR/83/736 were cancelled by the Overseas suppliers and the plaintiff lost the profit of N60,000.00 (SIXTY THOUSAND NAIRA) he expected to make on the transactions.
12. The Plaintiffs aver that up till now the Defendant has refused and/or neglected to remit the money to the beneficiary or return the money to the plaintiffs or credit the amount or its naira equivalent to any of the Plaintiffs accounts.
13. The Plaintiffs aver that a letter was written to the Defendant dated 14th June, 1989 warning them of Court action for their continued failure to remit the money to the plaintiffs, still the Defendant did nothing but instead debited the plaintiffs account No. 5209 with higher exchange rate prevailing as at that time of 1989.”
The Appellants’ action was predicated on the failure of the Respondent to remit the funds to the beneficiary of the letters of credit and the cancellation of the said letters which the 1st Appellant knew as far back in 1984.
Accrual of cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See DANTATA V. MOHAMMED (2000) 7 NWLR (Pt. 664) 176, SHELL PET. DEV. CO. V. FARAH (1995) 3 NWLR (Pt. 382) 149. Once cause of action is complete, the issue of suspension will not arise.
Therefore, the argument of counsel of the Appellants that the cause of action arose on 14th June, 1989 when the Appellants demanded for the refund of their money is not tenable. Acceding to this submission would mean that the Appellants would possess in perpetuity the right to shift forward as it suits them the date of accrual of cause of action.
The Appellants’ counsel made heavy reliance on Exhibit A2 at page 152 of the record of appeal. According to the Appellants’ counsel, Exhibit A2 dated 17th April, 1989 shows that the Respondent was still making efforts to transfer or remit the money stated in the letter of credit to the beneficiary. Therefore, the suit cannot be said to have been statute barred since same was filed in 1994.
I have carefully scrutinized the said Exhibit A2 which the Appellants want to use as a lifeline in sustaining their action. The said Exhibit was authored by the Respondent and it was in respect of Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling. In the said Exhibit, it is evident that some resolutions were still being made between the parties. The Respondent asked the Appellants to confirm from the beneficiary of the said letter of credit if it had received the proceeds of the letter of credit as the said letter had been refinanced. By Exhibit A2, I am inclined to hold that even if the claims on the Letter of Credit No. 0/CR/83/609 for £4, 190.03 pence pound sterling and Letter of Credit No. 0/CR/83/736 for £4,190.03 pence pound sterling are statute barred, the Appellants’ claim in respect of Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling cannot be. By this correspondence, the Respondent has acknowledged that the transaction is ongoing since it was making frantic efforts to resolve the issues relating to Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling.
I am of the firm view that even if the 1st Appellant was aware of the cancellation of Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling since 1984, Exhibit A2 made in 1989 showed that the Respondent was still trying to carry out the instructions in respect of the said letter of credit. Exhibit A2 is tantamount to an acknowledgement of its duty to perfect the Appellants’ instructions in respect of Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling hence the Appellants’ claims under the said letter of credit having been revived, cannot be statute-barred since the suit was instituted in 1994.
Flowing from the hills of the above, I therefore hold that the trial Court was right only to the extent of the limitation of action in respect of Letter of Credit No. 0/CR/83/609 for £4, 190.03 pence pound sterling and Letter of Credit No. 0/CR/83/736 for £4,190.03 pence pound sterling and not in respect of Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling.
Even if I agree with the trial Court that every material facts crystalizing a cause of action was opened to the 1st Appellant as far back as 1984 when he knew about the cancellation of the letters of credit, my opinion about the limitation of the Appellants’ claims on Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling will differ in the light of Exhibit A2.
Consequently, this Court finds that the Appellants’ claims in respect of Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling is not statute-barred.
ISSUE NO. 4
Whether the Appellants were not entitled to their claim of N412, 000.00 which was the Naira equivalent of £4,297.22 (at the black market rate) paid to the representative of the overseas suppliers in Lagos in satisfaction of the amount on Letter of Credit O/CR/83/636?
Counsel for the Appellants submitted that the learned trial judge has placed an undue strict proof on the aspect of special damages and by so doing, deprived the 1st Appellant a sum due to him.
He further submitted that the position of the law is that though special damages must be strictly proved, the law does not require a minimum measure of evidence or lay down a special category of evidence to establish entitlement to special damages. That what is required is that the person claiming should establish his entitlement to that type of damage by credible evidence of such character as would suggest that he is indeed entitled to an award under the head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases, operates. Reliance was placed on EMAPHIL LTD. V ODILI (1987) 4 NWLR (PT. 67) 915 AT PP. 936-937 PARAS H – B.
It was the contention of counsel for the Appellants that the reason why the learned trial Judge dismissed the claim principally was that the 1st Appellant neither tendered a receipt nor acknowledgment of receipt of the said sum. That the 1st Appellant under cross-examination testified that no receipt was issued for the payment of the said sum. Counsel therefore submitted that the approach by which the learned trial judge treated that issue was wrong.
It was the submission of counsel that the mere fact that there was no receipt for the said sum should not prevent the learned trial judge from making the award since receipts are not issued for foreign exchange purchased at the black market in Nigeria.
Reacting to the submissions of the Appellants above, counsel for the Respondent submitted that the trial Court was right to have refused that leg of the Appellants’ claims because the 1st Appellant who was sole witness for the Appellants testified that he could not recollect the exchange rate and that he was not issued a receipt evidencing the transaction. On the nature of special damages, counsel for the Respondent referred the Court to AKINKUGBE V. EWULUM (2008) 6 MJSC 134, 161, AJIGBOTOSHO VS. RENOLDS CONSTRUCTION CO. LTD. (2018) VOL. 5-7 (PT. II) MJSC 83 PG. 93-95 PARA G-F, DUMEZ (NIG) LTD. V. OGBOLI (1972) 1 All LR241 AND TABER v. BASMA 14 WACA 140.
Counsel for the Respondent therefore submitted that special damages will only be awarded if strictly proved.
RESOLUTION OF ISSUE NO.4
The Appellants under this issue contend that the trial Court ought to have granted their relief of N412,000.00 which was the Naira equivalent of £4,297.22 (at the black market rate) paid to the representative of the overseas suppliers in Lagos in satisfaction of the amount on Letter of Credit O/CR/83/636 which the Respondent allegedly failed to remit. Of course, this claim has the characteristics of a special damage which requires strict proof. The trial Court refused to grant this relief because the 1st Appellant could not provide receipts to substantiate his claims that upon the Respondent’s alleged failure to perfect its instructions regarding Letter of Credit O/CR/83/636, he had to source for the naira equivalent at the black market rate to pay the representative of the overseas suppliers in Lagos in satisfaction of the amount on Letter of Credit O/CR/83/636.
The 1st Appellant admitted under cross-examination that he was not issued a receipt for the transaction and that he could not recollect the exchange rate at that material time. Considering the nature of special damages which requires strict proof, not only that the Appellants failed to state the particulars of the special damage in their pleadings, I am also of the view that the 1st Appellant failed to prove his entitlement to same. Credible evidence is required to prove special damages. Even if the trial Court could dispense with the necessity of providing the receipt evidencing the transaction, I am of the opinion that failure of the 1st Appellant to state the exchange rate at the material time to enable the Court determine the credibility of the claim is fatal.
Special damages has been defined as such damages as the law will not infer from the nature of the act complained of. They are exceptional in character and therefore, they must be claimed specifically and proved strictly that all the losses claimed on every item must have crystallized in terms and value before trial. See the case of AUDU & ORS V. GIMBA & ANOR (2019) LPELR – 47403 (CA), OYEGADE & ORS V. OYENOWO & ANOR (2012) LPELR – 7893 (CA).
Consequently, this issue is therefore resolved against the Appellants and in favour of the Respondent.
ISSUE NO. 5
Whether the learned trial Judge was right not to have taken any decision on some part of the Appellants’ claim which were live issues before the Court?
On this issue, counsel for the Appellants submitted that the trial Court failed to consider claims bothering on return of the 1st Appellant’s Deed of Conveyance on his property at 15, Mafowoku Street, Akoka, Lagos and his Life Insurance Certificate deposited to secure overdraft on 3rd Appellant’s Account No. 1591; OR An Order that the Respondent at its own expense obtain for the Appellants certified true copies of these documents cannot be found. And also that the trial Court failed to consider their claims for the sum of N60,000.00 (Sixty Thousand Naira) being the expected profit the 1st Appellant lost due to the cancellation of the orders upon which Letters of Credit No. O/CR/83/609 and O/CR/83/736 was opened. The Appellant also submitted that the trial Court failed to consider their claims asking for an order declaring null and void and cancelling any debits entered against the 2nd Appellant’s account no. 5209 as a result of changes in the exchange rate of the Naira concerning the said Letters of Credits.
Counsel submitted that having joined issues on these facts in the pleadings, it was imperative that the learned trial judge decide one way or the other on the merit of claims.
It was the submission of counsel that the failure of the trial Court to pronounce on the three (3) issues can be attributed to denial of fair hearing as enshrined in the Constitution of Federal Republic and that same occasioned a miscarriage of justice. Reliance was placed on AFOLAYAN V OGUNRINDE (1990) 1 NWLR (Pt. 127) 369 at 383 para. B; AYISA V AKANJI (1995) 7 NWLR (PT. 406) 129 AT 143 para. H.
In response, counsel for the Respondent agreed that the trial Court did not make pronouncement on some of the issues and reliefs sought by the Appellants in their Amended Writ of Summons and Amended Statement of Claim. Counsel however submitted that a party who claims that the Court has not made a pronouncement with respect to his reliefs must not just stop at that but show how that omission has caused an injustice to him or in any way prejudiced him. Counsel cited the case of BALOGUN V LABIRAN (1988) 3 NWLR (PT. 80) 66, 80.
It was the further submission of counsel that the Court will not hold that there has been an omission to make a pronouncement if the issue involved had been subsumed in another one. He cited the case of ADEBAYO V. ATTORNEY-GENERAL, OGUN STATE (2008) 4 MJSC 80, 90. He submitted that the Claim for the sum of N60,000.00 (Sixty Thousand Naira) being the expected profit the 1st Appellant lost due to the cancellation of the orders upon which letters of credit No. O/CR/83/609 and O/CR/83/736 was opened were all summed up in the limitation of the Appellants’ claims.
RESOLUTION OF ISSUE NO. 5
The law is trite that a Court has a bounden duty to consider all issues that have been joined by the parties and raised before it for determination. See OKONJI V. NJOKANMA (1991) 7 NWLR (PT. 201) 131. Failure to do this, without a valid reason, then it certainly failed in its duty for in our judicial system, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such questions. Counsel for the Appellants submitted that the trial Court was bound to make pronouncements on issues and reliefs bothering on return of the 1st Appellant’s Deed of Conveyance on his property at 15, Mafowoku Street, Akoka, Lagos and his Life Insurance Certificate deposited to secure overdraft on 3rd Appellant’s Account No. 1591 and also their claims for the sum of N60,000.00 (Sixty Thousand Naira) being the expected profit the 1st Appellant lost due to the cancellation of the orders upon which Letters of Credit No. O/CR/83/609 and O/CR/83/736 was opened. The Appellant also submitted that the trial Court failed to consider their claims asking for an order declaring null and void and cancelling any debits entered against the 2nd Appellant’s account no. 5209 as a result of changes in the exchange rate of the naira concerning the said Letters of Credits. (See reliefs 2, 5 and 6 of the Amended Writ of Summons).
The reason why the Appellants are struggling to have a pronouncement on these issues is not farfetched. The 1st Appellant admitted owing the Respondent the sum of N36, 000 as at the end of August 1992 in its Account No. 1591. The Appellants acknowledging this indebtedness, are therefore asking for the sums on the Letters of Credits less the sum of N36,000 outstanding on the 3rd Appellant’s account no. 1591 and the return of the 1st Appellant’s deed of conveyance on his property at 15, Mofowoku Street, Akoka, Lagos and his Life Insurance Certificate with the Respondent which were used to secure the overdraft for the 3rd Appellant.
The reason why I hold these issues to be live issues which ought to be decided one way or the other is that in the event the trial Court grants the Appellants’ claims on the Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling which is not statute-barred, the trial Court would have to make pronouncements on issues 2 and 6 of the Amended Writ of Summons. As for the Appellants’ claim for the sum of N60,000.00 (Sixty Thousand Naira) being the expected profit the 1st Appellant lost due to the cancellation of the orders upon which Letters of Credit No. O/CR/83/609 and O/CR/83/736 was opened, I agree with counsel for the Respondent that the said claim is no longer a live issue because it has been subsumed in the limitation of the Appellants’ claims on the said letters of credit.
On the whole, the appeal succeeds in part. That part of the decision of the High Court of Lagos State, Lagos Judicial Division delivered by F.O. Atilade J. on the 18th day of November, 2003 wherein the 1st Appellant’s claims in respect of Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling to be credited to the Surrey Exporters (Africa) Limited of Liverpool was said to be statute-barred is hereby set aside.
Consequently, having held that the 1st Appellant’s claim regarding Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling is not statute-barred, reliefs 2 and 6 remain live issues in the suit and hereby remitted together with the claim in respect of Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling which is not statute-barred to the Chief Judge of Lagos State High Court for reassignment to another judge of the Court other than F.O. Atilade J. The said live issues are:
i. The Appellants’ claims in respect of Letter of Credit No. 0/CR/83/636 for £4,297.22 pence pound sterling to be credited to the Surrey Exporters (Africa) Limited of Liverpool.
ii. Return of the 1st Appellant’s Deed of Conveyance on his property at 15, Mafowoku Street, Akoka, Lagos and his Life Insurance Certificate deposited to secure overdraft on 3rd Plaintiff’s Account No. 1591 at Balogun Branch, OR An Order that the Defendant at its own expense obtain for the Plaintiff, Certified True Copies if these documents cannot be found.
iii. An order declaring null and void and cancelling any debits entered against the 2nd Plaintiff’s account no. 5209 as a result of changes in the exchange rate of the Naira concerning the said Letters of credit.
CROSS-APPEAL
In its cross-appeal dated 17th February, 2004, the Respondent/Cross-Appellant formulated a sole ground of appeal to wit:
“The learned trial Judge erred in law when she held – “therefore in view of the fact that the Defendant has failed to lead evidence in support of the averment in its Statement of Defence and counter-claim, same is deemed abandoned and struck out accordingly.”
From the above ground, counsel for the Respondent/Cross-Appellant distilled a sole issue to wit:
“Whether having regard to the pleadings of the Plaintiffs Appellant 1st Plaintiff’s admission of indebtedness in his claim and before the Court during trial in the course of cross-examination, lower Court was right to have struck out the Respondents counter-claim.”
The Appellants/Cross-Respondents’ counsel in a different but similar fashion adopted the issue formulated by the Respondent/Cross-Appellant’s counsel for the determination of the cross-appeal.
Without going into the arguments and submissions of counsel in respect of the cross-appeal, I have held earlier in the resolution of issue no.1 distilled for the determination of the main appeal that the Respondent/Cross-Appellant’s statement of defence and counter-claim is invalid by reason of the process being signed in the name of “DAMOLA OLOWOYEYE & CO.” contrary to the provisions of Section 2(1) and 24 of the Legal Practitioners Act and the binding decision of the Supreme Court in AJIBODE & ORS V. GBADAMOSI & ORS (2021) 7 NWLR (Pt. 1776) 475. The need to consider the issue as to whether the trial Court was right to have struck out the Respondent/Cross Appellant’s counter-claim for lack of evidence is immaterial, irrelevant, academic and confers no utilitarian value. Courts of law do not engage in academic exercise and by reason of this, the said cross-appeal is hereby dismissed.
Parties are to bear their respective costs.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead judgment of my learned brother ABUBAKAR SADIQ UMAR, JCA just delivered. I agree with my Lord’s reasoning and conclusion that the Appellant’s claim in respect of Letter of Credit No.: O/CR/83/636 for E4,297.22 is not statute-barred.
I am also of the view that reliefs 2 to 6 along with the claim in respect of Letter of Credit No.: O/CR/83/636 for E4,297.22 which is not statute-barred be remitted to the Chief Judge of High Court of Lagos State who shall assign the matter to another Judge of the Court other than F. O. Atilade, J. for hearing without further delay.
I abide by the consequential order made in the said lead judgment including the order that the Cross-Appeal be dismissed.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Abubakar Sadiq Umar, JCA, made available to me a draft copy of the Judgment, now delivered.
I agree with, and adopt as mine the robust resolution of the issues in contention, as has been ably done by my learned brother. For these reasons, I allow the appeal in part, and abide by the orders made thereon. The cross-appeal is also dismissed by me.
Appearances:
Tolulope Taiwo (Mrs) For Appellant(s)
Okolie Fanklin Olisa Dumebi For Respondent(s)