SPRING BANK PLC V. DOKKIN VENTURES NIGERIA LIMITED
(2012)LCN/5406(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of May, 2012
CA/L/682/2009
RATIO
WORDS AND PHRASES: DEFINITION OF AN ISSUE FOR DETERMINATION
I find it pertinent to define, what an “issue for determination” is. Simply put, it is a substantial question of law or of fact, or both, arising from the case/pleadings, or Grounds of Appeal. PER RITA NOSAKARE PEMU, J.C.A.
COURT: DUTY OF COURT TO CONSIDER AND PRONOUNCE UPON ALL ISSUES RAISED BY PARTIES
In SAMBA PETROLEUM LTD. & ANRS. V. U.B.A. PLC. & ORS (2010) 6 NWLR 530 at 531, the Apex Court had held that a court has a statutory duty to consider and make pronouncement upon all issues raised by the parties and not to confine itself only to issues which it considers to dispense of the case.
This is only reasonable in order to obviate the danger of a higher Court holding a contrary view on the materiality of the issues (as I was tempted to do).
The Judge of a Court must demonstrate a full, dispassionate consideration of the issues raised and canvassed before it. Failure of the Court to do this will lead to a dent in the case of an appeal, which when resolved one way or the other, will affect the result of the case or an appeal. PER RITA NOSAKARE PEMU, J.C.A.
APPEAL: WHO CAN FORMULATE ISSUES FOR DETERMINATION
Issues for determination are formulated by the parties and/or the Court. In SHA (JNR) V. KWAN (2000) 8 NWLR Pt. 670, 685 @ 691 to 692 Ratio 9, the Supreme Court stated inter alia-
“Issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the Court, after a consideration of those set out by the parties……….”
A Court is at liberty, and possesses the jurisdiction, to modify or reject all or any of the issues formulated by the parties, and frame its own issues or reframe the issues formulated by the parties, if in its view, such issues will not lead to a proper determination of the appeal. (In the case of an appeal) See AKPAN V, THE STATE (1992) 6 NWLR Pt. 218 Pg. 431.
In UZUDA & ORS V. EBIGAH (2009) 8 – 9 NMLR 409 @ 422, where Muntaka-Coomasie J.S.C. had this to say:
“The lower Court, being an intermediate Court, whose Judgment is not final as compared to this Court’s decision, it has the duty to decide all issues submitted to it for adjudication unless where some issues can be subsumed under another one, or where the Court framed its own issue that encompasses all the issues placed before it or where the issues amounts to a mere hypothetical or academic issue.”
In BRAWAL SHIPPING V. ONWUDIKOKO (2000) 6 SCNJ 508 at 522, Uwaifo JSC stated the General Principle viz:
“It is no longer in doubt that this Court demands of and admonishes the lower courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.
Failure to do so may lead to a miscarriage of justice and certainly will have that result of the issues not pronounced upon are crucial. PER RITA NOSAKARE PEMU, J.C.A.
APPEAL: CIRCUMSTANCES AN APPELLATE COURT WILL ENTERTAIN AN APPEAL AGAINST AWARD OF GENERAL DAMAGES
Decidedly, an appellate Court will not entertain an appeal against award of general damages unless it is shown that such award was manifestly so excessive as to amount to an erroneous estimate having regard to the evidence.
The burden of establishing this, is on the person appealing damages.
NIGERIAN BOTTLING CO. LTD. V. NGONADI (1985). 1 NWLR 739 at 741 Ratios 9 & 10. PER RITA NOSAKARE PEMU, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
IBRAHIM MUSA MOHAMMED SAULAWA Justice of The Court of Appeal of Nigeria
RITA NOSAKARE PEMU Justice of The Court of Appeal of Nigeria
Between
SPRING BANK PLC Appellant(s)
AND
DOKKIN VENTURES NIGERIA LIMITED Respondent(s)
RITA NOSAKARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final Judgment of Honourable Justice A. A. Phillips of the High Court of Lagos State delivered on the 11th of June, 2009, wherein, as reflected at pages 486-487 of the Record of Appeal, judgment was given in favour of the Claimant (Respondent in this appeal) against the Defendant (Appellant in this Appeal).
The action, subject matter of this appeal was commenced, after pre-trial conference formalities, by Amended Writ of Summons dated 17th October, 2006 – shown on page 280-281 of the Record of Appeal.
In it, the Claimant claims the following against the Defendant viz:-
“An order that the Defendant illegally and unlawfully retained the sum of US$871,595.04 being foreign exchange allocated to and purchased on behalf of the Claimant by the Defendant and which sum of money the Claimant fully paid the naira value to the Defendant.”
2. “An order that the Claimant, are entitled to, and that the Defendant should pay to Claimant the sum of US$871,595.04 being foreign exchange allocated to and purchased on behalf of the Claimant by the Defendant and which sum of money the Claimant fully paid the naira value to the Defendant.”
3. “An order that the Claimant is entitled to and that the Defendant should pay to the Claimant the sum of N8,458,000.00 being total costs of legal fees, consultancy fees, hotel, travel and other incidental expenses incurred by the Claimant in the pursuant of the Claimant’s claims as stated herein.”
4. An order that the Claimant is entitled to and that the Defendant pay to the Claimant general damages in the sum of N40,000,000.00 for the negligence, failure and refusals of the Defendant to settle the Claimant and in the alternative, as a result of the Defendant’s breach of the Banker/Customer relationship existing between the Claimant and the Defendant at all material times.”
5. An order that the Defendant pay to the Claimant interest on all the above mentioned sums at the rate of 21% per annum from 17th of December, 1993 till final judgment is delivered in this case and thereafter at the rate of 7% per annum until the entire Judgment debt and cost are liquidated.” – Pages 289-291 of the Record of Appeal.
At the close of pre-trial conference, the matter proceeded to trial. At the conclusion of trial, the parties filed their respective written addresses, after which the lower court adjudged, as reflected at page s 486-487 Vol. II of the Record of Appeal, the Respondent as victor.
SYNOPSIS OF THE FACTS, as gleaned from the respective parties –
The Respondent opened an account with the Appellant’s bank in 1993, pursuant to an agreement between them, as to the use of the Respondent’s fund which were deposited with the Appellant’s bank. This fact was confirmed by the Appellant in Exhibit C1 which is Appellant’s letter of 6th August, 1993.
The Appellant, subsequently opened a letter of credit on the instruction of the Respondent, in favour of Messrs Kamar B.V. of Netherlands, for the supply of equipment to facilitate the Respondent’s contract with the now defunct OMPADEC. When the suppliers were tarrying, the Respondent, through Exhibit C3 instructed the Appellant to cancel the Letter of Credit and further instructed the Appellant, to refund the foreign exchange used in purchasing the Letters of Credit into the Respondent’s account.
The cancellation of the Letter of Credit, was still within the 90 days maturity period of the Letter of Credit.
The reason for the request for refund of the foreign exchange, was to enable the Respondent use the foreign exchange, to process another Letter of Credit transaction with another supplier.
The Appellant did not carry out the request
The Appellant had said that the foreign exchange used for the now cancelled Letter of Credit was returned to the Appellant’s pool. The Respondent needed to make use of the foreign exchange not used for the cancelled letter of credit, and asked for it, but surprisingly Appellant would not produce same. The Respondent then asked to see its Statement of Account with the Appellant.
No Statement of Account was furnished Respondent, since 1993 when the account was opened in his favour, until September 1995. The statement of account is Exhibit C14B. When the Respondent saw it, he disagreed with its content.
Subsequent statements of accounts were also found to contain several irregular entries. They are Exhibits C15 and C16 respectively.
The Appellant did not address the important issue of accounting for, and refunding the US $871,595.04, being the foreign exchange allocated to and purchased by the Appellant, on behalf of the Respondent, and which sum the Respondent paid the full naira value to the Appellant.
Simply put, the Respondent’s case was that although the Letter of Credit was cancelled, the proceeds were not paid into their dollar account by the Appellant.
The Appellant, on the other hand is contending that although the Respondent deposited the sum of N102,640,931.25 with it and gave instructions as per Exhibit C1, it could not carry out all aspects of the instruments due to further instructions or disbursements given to it by the Respondent. It is the Appellant’s contention that the proceeds for the cancellation could not have been returned in United States Dollars, into such an account that is non-existent. That the dollar value of the cancelled letter of credit was repurchased, and the naira value returned to the Respondent’s cash collateral account. The Appellant further contends that the Respondent utilized the said returned money by the purchase of two (2) bank drafts attached to Exhibit D7. The Appellant further contends that the matter was resolved by the Central Bank of Nigeria, who directed that certain sums of money, being the difference in the repurchased dollar be credited into the Respondent’s account, which directive was fully carried out.
Dissatisfied with the Judgment of the lower court Coram A. A. Phillips of 11th June, 2009, the Appellant has appealed the decision, by Notice of Appeal filed on the 15/6/2009. The Notice of Appeal encapsulates five (5) Grounds of Appeal.
Pursuant to an application filed on the 26th of January, 2011, for extension of time within which the Appellant/Applicant may file its Appellant’s Brief of Argument, the application was granted and the said Brief of Argument was deemed filed and served by Order of Court on the 13th of March, 2011.
The Respondent by Motion on Notice filed on the 10th of May, 2011, also applied for extension of time within which to file the Respondent’s Brief of Argument out of time, and same was granted and deemed filed by Order of Court on the 11th of May, 2011.
The Appellant filed a reply Brief of Argument on the 27th of May, 2011.
The Appellant, in his Brief of Argument had proffered and articulated 4 (four) issues for determination as reflected in paragraphs 3.01 – 3.05 of his Brief of Argument. They are:
1. “Whether the refusal of the lead trial Judge to consider issues 1, 2 and 3 formulated by the Appellant in their Final Written Address dated 5th of March, 2009 is unjustified in law and in breach of their right to fair hearing.”
2.”Was the order for the payment of the sum of US$871,595.04 (Eight Hundred and Seventy One Thousand, Five Hundred and Ninety-Five Dollars, Four Cents) by the Appellant to the Respondent justified in view of the unchallenged evidence of the utilization of the naira proceeds from the repurchase of the cancelled letters of credit?”
3. “Whether or not the award of damages and in the sum of N10 Million is justified in law.”
4. Whether the orders for the payment of interest on the Judgment sums, and at the rate of 21% per annum is not perverse.”
The Respondent on his part has formulated and articulated 3 (three) issues for determination. They are:
1. “Whether the lower court was right when it restricted itself to the issues formulated by the parties at the pre-trial stage in determining the suit.”
2. “Whether from the entirety of the evidence led, the lower court was right when it held that the Respondent/Claimant had proved that the Appellant/Defendant illegally and unlawfully retained he sum of US$871,595.04 and in consequence thereof ordering the Appellant to pay back to the Respondent the sum of US$871,595.04.”
3. “Whether the lower court was right to have awarded interest at the rate of 21% per annum from December 1993 until 11th June, 2009 and thereafter 7% per annum until liquidation of the Judgment sum.”
Learned counsel adopted their respective briefs of argument on the 14th of March, 2012. Dr. J. Nwobike SAN, also adopted his reply brief of 27th May, 2011, and relies on the legal arguments therein.
Chukwudi Adiukwu Esq., learned counsel for the Respondent sought leave of Court to adopt his brief which is in excess of thirty pages and same was granted.
While learned silk urges that the appeal be allowed, learned counsel for the Respondent urges Court to dismiss the appeal as lacking in merit.
The four issues for determination of the Appellant seem to me to have been distilled from the Grounds of Appeal.
On the first issue for determination, that is to say-
“Whether the refusal of the learned trial Judge to consider issues 1, 2 and 3 formulated by the Appellant in their Final Written Address dated 5th of March, 2009 is unjustified in law and in breach of their right of fair hearing”
It is the contention of learned counsel for the Appellant that the learned trial Judge did not consider Issues 1, 2 and 3 formulated by the Appellant in their final written address dated 5th March, 2009.
On his part, learned counsel for the Respondent has argued in his brief of argument, that the Appellant, having failed to comply with the rules of court by adopting the issues for determination raised at the pre-trial stage by the Appellant, no indulgence of the court can be granted to the Appellant who has done otherwise.
That the learned pre-trial Judge, Honourable Justice O. A. Ipaye had ordered parties to file issues for determination in line with the High Court of Lagos State (Civil Procedure) Rules 2004 – referring to Page 263. Vol. II of the Record of Appeal.
He submits that the philosophy of front loading is also applicable to the philosophy of the pre-trial conference and formulation of issues for determination at the pre-trial stage. That this is similar to election petition matter where all interlocutory issues are handled at the pre-hearing stage and it is only with the leave of court that interlocutory issues can be handled at the trial stage.
I see that at page 263 of the Record of Appeal, the learned pre-trial Judge – Justice O. A. Ipaye had directed thus-
“COURT: Matter shall stand adjourned to the 16/01/05 at 2.00pm. Failure to comply with Order 25 Rule 3(a) and formulation of issues for determination of trial before the next adjourned date.”
Order 25 Rule 3 of the Lagos State High Court (Civil Procedure) Rules 2004 has this to say inter alia-
“At the pre-trial conference, the Judge shall consider and take appropriate action with respect to such of the following (or aspects of them) as may be necessary or desirable
(a) Formulation and settlement of issues ……..”
By Order 25 Rule 6 – it says inter alia
“If a party or his legal practitioner fails to attend the pre-trial conference or obey a scheduling or pre-trial order or is substantially unprepared to participate in the conference or fails to participate in good faith, the Judge shall
(a) in the case of the claimant, dismiss the claim
(b) in the case of a Defendant enter final Judgment against him……….”
By Order 25 Rule 7 it says inter alia
“The Judge shall direct the pre-trial conference with due regard to its purposes and agenda as provided by this Order……”
The learned trial Judge, at page 9 of his Judgment – page 476 of the Record of Appeal has observed thus –
“At the pre-trial level, the Claimant formulated the first 3 issues alone while the Defendant formulated only 1 issue which is the 4th issue above so these are the issues that this court will therefore adopt in this Judgment in compliance with the above Rule of Court. The argument of learned counsel for the Defendant to the contrary is of no moment. since all the issues have been condensed into the above by the learned pre-trial Judge and counsel cannot be allowed to formulate fresh issues at any twist and turn. Since it is part of the duties of the pre-trial conference Judge to oversee the formulation of issues and this has been done already in this matter, I will confine myself to a consideration of the above issues above as these are the issues formulated by both counsel. In this matter, I therefore, discountenance those formulated by the Defendant’s counsel in his written final address but will of course consider all of the arguments advanced by him in so far as they relate to the above issues only.”
At page 267 of the Record of Appeal, the 3rd paragraph thereof, talks about issues proposed for determination at trial which are:
1. “Whether the Defendant was fraudulent in handling of the accounts of the Claimant company and
2. “Whether the Defendant is in breach of the bank customer relationship
3. “Whether the Claimants is entitled to relief sought and
4. “Whether the Claimant is estopped from seeking relief sought in view of prior agreements and payment made on same by the Defendant.”
It is inherent in the report of the pre-trial conference of 6th February, 2006 – pages 267-268 of the Record of Appeal.
At pages 400 – 411 of the Record of Appeal, is the Defendant’s final written address, where at page 402, he formulated five issues for determination viz:
1. “Whether the Claimant opened the account known as “DOKKINS VENTURES DOLLAR ACCOUNT” into which the U.S. dollor proceeds for the cancellation of the Letter of Credit where to be paid into”‘
2. “Whether the Claimant received and fully utilized the none-proceeds from the cancellation and repurchased Letters of Credit’?
3. “Whether the Claimant, having received the sum of N5,146,596.84 as difference in foreign exchange purchases and other sums pursuant to Exhibit C26, is not estopped from maintaining this action as presently constituted
4. “Whether Exhibit C30 is valid and binds the Claimant, notwithstanding the typographical errors contained therein.
5. “Whether the claimant has proved its case and entitled to Judgment as pleaded in the Amended Statement of Claim dated 17th October, 2006.”
Learned counsel for the Appellant has relied on the provisions of Order 31 Rule 2 (III of the High Court of Lagos State (Civil Procedure) Rules 2004 which says:
“A Written Address shall be printed on white opaque A4 size paper and set out in paragraphs numbered serially and shall contain the issues arising from the evidence.” (Underlined for emphasis).
At pages 264 of the Record of Appeal, the Issues for determination formulated by the Claimant pursuant to Order 25 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules 2004 are same as earlier reproduced, that obtained at the pre-trial conference, as observed by the learned pre-trial Judge. It is dated 16th December, 2005 and filed.
From records, the written address referred to, is dated 5th March, 2008, (page 400-411 of the Record of Appeal), while the pre-trial conference took place in 2005 – about three years apart. The hearing of evidence and trial took place in between.
It is apparent that at the pre-trial conference before Honourable Justice O.A. Ipaye, all interlocutory applications were taken, but not the hearing of the substantive matter, which takes place at the hearing proper.
Indeed at page 260 of the Record of Appeal, the Appellant (at the lower Court) had filed a process that the only issue of fact arising for determination by this Honourable Court is “whether considering the peculiar circumstances of this case and various payments made by the Defendant to the Claimant pursuant to various agreements reached between them, the Claimant is not altogether stopped from claiming as per their Writ of Summons and Statement of Claim.”
There is no doubt that the Issues formulated at the pre-trial conference, and that formulated in learned counsel’s final address show that they are more or less the same, as they address the same grouse. For purposes of emphasis, I find that the issues formulated at the pre-trial conference by the Claimant are essentially the same as that formulated in the written address.
In considering the issues for determination, the learned trial Judge at the Court below has this to say inter alia:
“Before I adopt the issues for determination in this judgment I need to comment on the argument that has arisen between counsel as which issues for determination have been formulated by counsel in this suit. Without much ado, I must state I agree with the submission of learned counsel for the Claimant that the issues for determination as formulated by counsel at the pre-trial conference level are the only issues that this Court can consider in this Judgment; Order 25 Rule 3(a) of the 2004 Rules provides as follows:
3. At the pre-trial conference the Judge shall consider and take appropriate action with respect to such of the following (or aspects of them) as may be necessary or desirable.
(a) Formulation and Settlement of Issues.”
In the Pre-Trial Conference Report prepared by Ipaje J., the following issues for determination were formulated for consideration in this matter:-
1. Whether the Defendant was fraudulent in the handling of the accounts of the Claimant involved in this case.
2. Whether the Defendant was in breach of the customer/banker relationship existing between the Claimant and the Defendant.
3. Whether the Claimant is estopped from seeking the reliefs sought in view of prior agreements and payments made on same by the Defendant.
I want to understand the grouse of the Appellant to be inter alia, that the learned trial Judge failed and/or refused, to consider his Written Address (Issue No. 1).
I find it pertinent to define, what an “issue for determination” is. Simply put, it is a substantial question of law or of fact, or both, arising from the case/pleadings, or Grounds of Appeal. As earlier observed at page 260 of the 2nd volume of the Record of Appeal, the Defendant at the pre-trial (who is the Appellant in this Appeal) formulated an issue for determination. The Claimant (who is the Respondent in this Appeal) at page 264 of the 2nd volume of the Record of Appeal formulated three issues for determination.
These are the issues considered by the learned trial Judge at page s 476 to 486 of the Record of Appeal, as reflected in her Judgment.
In SAMBA PETROLEUM LTD. & ANRS. V. U.B.A. PLC. & ORS (2010) 6 NWLR 530 at 531, the Apex Court had held that a court has a statutory duty to consider and make pronouncement upon all issues raised by the parties and not to confine itself only to issues which it considers to dispense of the case.
This is only reasonable in order to obviate the danger of a higher Court holding a contrary view on the materiality of the issues (as I was tempted to do).
The Judge of a Court must demonstrate a full, dispassionate consideration of the issues raised and canvassed before it. Failure of the Court to do this will lead to a dent in the case of an appeal, which when resolved one way or the other, will affect the result of the case or an appeal.
Issues for determination are formulated by the parties and/or the Court. In SHA (JNR) V. KWAN (2000) 8 NWLR Pt. 670, 685 @ 691 to 692 Ratio 9, the Supreme Court stated inter alia-
“Issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the Court, after a consideration of those set out by the parties……….”
A Court is at liberty, and possesses the jurisdiction, to modify or reject all or any of the issues formulated by the parties, and frame its own issues or reframe the issues formulated by the parties, if in its view, such issues will not lead to a proper determination of the appeal. (In the case of an appeal) See AKPAN V, THE STATE (1992) 6 NWLR Pt. 218 Pg. 431.
In UZUDA & ORS V. EBIGAH (2009) 8 – 9 NMLR 409 @ 422, where Muntaka-Coomasie J.S.C. had this to say:
“The lower Court, being an intermediate Court, whose Judgment is not final as compared to this Court’s decision, it has the duty to decide all issues submitted to it for adjudication unless where some issues can be subsumed under another one, or where the Court framed its own issue that encompasses all the issues placed before it or where the issues amounts to a mere hypothetical or academic issue.”
In BRAWAL SHIPPING V. ONWUDIKOKO (2000) 6 SCNJ 508 at 522, Uwaifo JSC stated the General Principle viz:
“It is no longer in doubt that this Court demands of and admonishes the lower courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.
Failure to do so may lead to a miscarriage of justice and certainly will have that result of the issues not pronounced upon are crucial.
Consequently, there could be avoidable delay since it may become necessary to send the case back to the lower court for those issues to be resolved.
The obvious exceptions are when an order for retrial is necessary or the judgment is considered a nullity, in which case there may be no need to pronounce on all the issues which could arise at the re-trial or in a fresh action as the case may be.”
I am of the view that these views of the Apex Court apply to relationship between the Court of Appeal and the lower courts from which appeals come to it.
A Court is obligated to consider and pronounce on issues raised ORJI v. PDP (2009) 14 NWLR Pt. 1161. Pg. 310 @ 408; KARIBO v. GREND (1992) 3 NWLR Pt.230. 426 @ 441; OSOSANA V. AJAYI (2004) 14 NWLR Pt.894 at Pg.527 at 549; OKONKWO V. UDO (1997) 9 NWLR Pt. 579 Page 16 @ 20.
When the learned trial Judge said in her Judgment that
“………..In this matter, I therefore, discountenance those formulated by the Defendant’s counsel in his written final address but will of course consider all the arguments advanced by him in so far as they relate to the above issues only”
She was right in my view to hold so. This is because a cursory look at the issues formulated at the pre-trial conference and that formulated in the written address seem to me the same as it addresses the main issue in the suit. The issues formulated at the pre-trial conference were deemed by the learned trial Judge, in the exercise of her judicial discretion, as the issues relevant to the case in compliance with the provision of Order 25 Rule 3(a) of the High Court of Lagos State (Civil Procedure) Rules 2004.
The fact that in Order 31 Rule 2(III) of the High Court of Lagos State (Civil Procedure) Rules, talks about “issues arising from the evidence” does not connote that new set of issues for determination be formulated different from those envisaged under Order 25 Rule 3(1). The issues in the subsequent address must relate to those at the pre-trial conference, to enable the learned trial Judge consider the relevant issues in any given case. This situation obtained in this present matter.
I agree with the learned trial Judge that “all the issues have been condensed into the above issues by the learned pre-trial Judge.” I agree with the learned trial Judge when he observed that learned counsel cannot be allowed to formulate fresh issues at every twist and turn. The learned trial judge in fact considered the issues.
The argument of learned counsel for the Appellant in support of Issue No. 1 is grossly misconceived. The answer to that issue is necessarily in the negative.
The decision of the learned trial Judge in this regard, to the effect that the issues for determination as formulated by counsel at the pre-trial conference level are the only issues that this Court can consider in this Judgment, cannot be faulted. Only issues which are necessary or desirable in the peculiar circumstance of a case, shall be considered.
The contention of learned counsel for the Appellant that the refusal of the learned trial Judge to consider issues 1, 2 and 3 formulated by the Appellant in his final address constitute a denial of his right to fair hearing, is a total misconception.
This issue is consequently resolved in favour of the Respondent and against the Appellant.
Issue No. 2 which is-
“Was the order for the payment of the sum of USD$871,595.04 (Eight Hundred and Seventy-One Thousand, Five Hundred and Ninety-Five Dollars, Four Cents) by the Appellant to the Respondent justified in view of the unchallenged evidence of the utilization of the naira proceeds from the repurchase of the cancelled letters of credit”
Instructively, in the Respondent’s reply to Appellant’s statement of Defence, it did not deny the issuance of the two bank drafts in the sums of Sixteen Million Naira and Five Million Naira respectively, but alleged that same were not from the proceeds of the repurchased value of the cancelled letters of credit. The two bank drafts attached to Exhibit D7 were never challenged by the Respondent (page 70-72 of the Record of Appeal). When the Defendant amended its Statement of Defence, plaintiff filed no amendment or reply (pages 55-56 of the Record of Appeal). I find that the learned trial Judge shyed away from the fact of where the Respondent got the fund with which it purchased the two bank drafts totaling Twenty One Million Naira. The learned trial Judge did not consider the utilization of the proceeds of the re-purchased letters of credit. In fact the Court failed to consider Exhibit D7 and to make a finding on it.
Exhibit “C3″ is a document which shows that the Respondent has a dollar account.
Significantly, Exhibits C4, C5, C7, C8, C9, C11, C12 and C13 are instructive. Exhibit C4 is a letter from the Appellant to the Managing Director Dokkin Ventures Limited (Respondent in this appeal) headed- RE-PURCHASE OF FOREIGN EXCHANGE CITIZENS INTERNATIONAL BANK LIMITED. AMOUNT: USD$871,595.04. It is dated 17th June, 1997, where the Appellant responded to some claims by the Respondent.
In paragraph (5) of the letter it had this to say:-
SALE OF FOREIGN EXCHANGE AT NGN 25.3 TO 1 USD.
The Bank applied the CBN Ruling Sale Rate of NGG 21.996 to 1 USD plus allowable margin on the sale of all foreign exchange purchased from the CBN to DOKKIN VENTURES LIMITED. All other charges to DOKKIN’S were duly negotiated in a meeting held with the Company’s management and summarized in the hank’s letter dated 6th August, 1983 (copy enclosed). The charges made by the bank in each of these transactions were predicated on the following concessions granted to your company based on a total pricing concept:
(a) The bulk sum deposited by Dokkin for Forex bidding were interest bearing at 40%, which was higher than our usual rate.
(b) Commission on turnover of NGN 3.00 per mille was waived by the Bank on all debits to the bidding account.
The management of the Company, considered the concession granted by the Bank very beneficial, and convenient, and on that basis agreed that the Bank levy additional charges on the account.
We had expected a protest letter hereafter if you had any objection to this offer.
The rate of NGN25.3 to 1 USD was the cost of the foreign exchange of 21.9960 plus these charges given the concessions granted by the bank. The additional charges were less than the benefit the Company derived if it had left its funds in current account.
Dokkin Ventures Limited claim of NGN5,146,596.84 as a result of alleged excess rate application in the FX International could therefore not be justified……”
In Exhibit C5 dated 30th December, 1994, the Respondent wrote to the Central Bank of Nigeria, asking to confirm from its records, if the Appellant returned all the sum repurchased to it according to C.B.N’,s guidelines.
Exhibit C9 is Solicitor’s letter from B. Ayorinde & Co. dated 22nd March, 1995, addressed to the Appellant’s Managing Director. Simply put, the letter was inquiring from the Appellant, whether the sum of USD$871,595.04 repurchased by it in accordance with Central Bank of Nigeria guidelines, has been credited to the Respondent’s account.
The letter then demanded that the Appellant credit the Respondent’s account with the sum of USD$871,595.04 or N71,470,793.28 within 7 days from the date of the Solicitor’s letter.
The Appellant replied to a letter dated 5th September, 1995, as reflected in Exhibit C11. In Exhibit C12, the Appellant vide letter dated July 28th, 1997, forwarded to the Respondent a tabulation regarding the repurchased proceeds of cancelled L.C. for US$724,705.88, and other unutilized foreign exchange from Dokkins Ventures Limited.
Again by Exhibit C14, the Appellant vide letter dated 28th July, 1997, with attachments, forwarded to the Respondent, date and amount and rates at which proceeds of the Respondent’s cancelled letter of credit and other unutilized foreign exchange were repurchased by the Appellant. Attached to Exhibit C14 was a Statement of Account. On the Statement of Account, in respect of the Respondent’s Account No. NGN160051001 from January 1st, 1993 to January 1st, 1996, it is apparent on the face of it that certain amounts were paid to the Respondent’s account.
There was the sum of 876.864.46 paid into the Respondent’s account reflecting value of USD40255.01 purch.
There was the sum of 1,015,165.01 paid into the Respondent’s account being payment as per instructions.
There was the sum of 15,940,630.54 paid into the Respondent’s account being refund of unutilized balance on CTZ.ILC.1. 93.0527. IFO DOKKIN VENTURES and there was the sum of 2,345,502.72 paid into the Respondent’s account by the Appellant reflecting currency sale.
By Exhibit D1, the Appellant wrote a letter dated 17th February, 1998 to the Respondent:
Same may be reproduced thus-
“CITIZENS BANK
February 17, 1998.
The Managing Director
Dokkin Ventures Limited
Suit B562 Festac ’77 Hotel Plc
P.O. Box 2591
Festac Town
Lagos.
Dear Sir,
RE: RECONCILIATION OF DOKKIN VENTURES LIMITED ACCOUNT CARRIED OUT IN ABUJA ON DECEMBER 18TH, 1996.
Following the successful joint reconciliation of Dokkin Ventures Account in Abuja on December 18, 1997 by officials of Citizens International Bank and Dokkin Ventures Limited, the bank has agreed to refund the under-listed disputed Charges made to the account to Dokkin Ventures Limited:-
1. Commission on Turnover (COT) – 83,592.35
2. Corporate Services Charge – 426,618.61
3. Miscellaneous Debit 97,618.63
4. 0.5% Negotiation Charge on cancelled
Letter of Credit (L/C) 80,530.80
5. Difference in Foreign Exchange
Repurchases rate 5,146,596.84
TOTAL 5,835,118.97
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Refund of each of the above entries would be as at the date original entry i.e (back valued).
Kindly indicate your acceptance of the above and confirm that the bank may issue a certified cheque in favour of Dokkin Ventures Limited in settlement of the amount. We earnestly hope this would bring the long outstanding dispute to rest and pave the way for a better future banker-customer relationship.
Please acknowledge receipt on the attached copy of this letter.
Kind regards
Yours faithfully,
CITIZENS INTERNATIONAL BANK LTD.
AUTHORIZED SIGNATORY
SIGNED SIGNED
By Exhibit D3, the Appellant, by letter dated July 28th, 1997, forwarded to the Respondent details inter-alia, of amount and rates at which the proceeds of their cancelled letter of credit, and other unutilized Foreign Exchange were repurchases by the Bank.
By Exhibit EAH, the Appellant by letter dated October 19th, 1998, wrote to the Respondent, explaining the refund of amounts between 31st March, 1998 and 21st April, 1998, to the Respondent.
Exhibit D7 -is letter dated November 8th, 1994, from the Respondent to the Appellant wherein the Respondent referred to expenditure which it had requested the Appellant to carry out on its behalf. The expenditure was to come in form of the Appellant, using its own funds, since they were guaranteed by the volume of the Respondent’s credit, or by directly debiting the Respondent’s account pending the formalization of the signatories. Attached to Exhibit D7 are two bank drafts drawn in favour of the Ham Dredging Nigeria Limited dated 21st February, 1994, for the sum of Sixteen Million Naira, and another for the sum of Five Million Naira drawn in favour of Ham Dredging Limited dated 25th February, 1994.
However, Exhibit D1 and D5 show that the Appellant had refunded certain sums to the Respondent. These refund are stated in Exhibit D1, dated October 19th, 1998, where the sum of N15,835,118.97 was refunded to the Respondent’s account, between 31st March, 1998 to 21st April, 1998. Also the sum of N2,884,646.03 was refunded in line with their computation of the final sum due to the Company.
There is no gainsaying that the Respondent had received some sum of money either as part of the value of the repurchased letter of credit, or for something for that matter. The important thing is that money was paid to the Respondent.
With respect, the learned trial Judge dwelt extensively on the issue of fraud, without appreciating this fact of refund of certain sum to the Respondent. The fact that the Appellant, at various and sundry times returned money to the Respondent, by way of payments made to it, cannot be ignored. I had in this Judgment exhaustively shown these transactions. The learned trial Judge should have noted these instances and indeed comment on them, but she did not. In view of this, the order for the payment of the sum of US$871,595.04 (Eight Hundred and Seventy-One Thousand, Five Hundred and Ninety-Five Dollars, Four Cents) by the Appellant to the Respondent, cannot be said to be justified in the circumstances of the case, and that issue must be answered in the negative.
This issue is resolved in favour of the Appellant and against the Respondent.
On issue No. 3, which is
“Whether or not the award of damages and in the sum of N10, Million is justified in law”
At page 487 of the record of Appeal – (Page 20 of the Judgment of the learned trial Judge A.A. Philips (Mrs.) of 11/6/09. she adjudged thus in item (4).
“The Claimant is entitled to and that the Defendant shall pay to the Claimant the sum of N10,000.00 (Ten Million Naira) for the negligence, failure and refund of the Defendant to settle the Claimant’s claims.” Decidedly, an appellate Court will not entertain an appeal against award of general damages unless it is shown that such award was manifestly so excessive as to amount to an erroneous estimate having regard to the evidence.
The burden of establishing this, is on the person appealing damages.
NIGERIAN BOTTLING CO. LTD. V. NGONADI (1985). 1 NWLR 739 at 741 Ratios 9 & 10.
In Paragraph 40(4) of the Statement of Claims, the Claimant claims damages for Negligence. Indeed in my view, that head of relief is vague. It is couched thus:
“An order that the Plaintiff is entitled to and that the Defendant pay to the Plaintiff General Damages in the sum of N40,000,000.00 (Forty Million Naira) for the negligence, failure and refusal of the Defendant to settle the Plaintiffs claims and in the alternative, as a result of the Defendant’s breach of the banker/customer relationship existing between the Plaintiff and the Defendant at the material times.”
On page 11 of vol. 1 of the Record of Appeal at (page 483 of the Record of Appeal), the learned trial Judge observed as follows:
“I accordingly hold that the action of the Defendant in doing so was not only negligent but extremely fraudulent and the contents of Exhibit C30 with or without the typographical errors therein will not help it escape liability as this letter is clearly an afterthought and above all does not explain what happened to the U.S. dollars purchased by the cancelled L.C.”
She went further:-
“I accordingly held that the Claimant has discharged the burden of proving fraud against the Defendant as there is no iota of doubt in my mind that the Defendant has not acted in good faith and as it should in respect of these funds………..”
Is this what negligence was purportedly based on? Assuming there is fraud established, is that what attracted the negligence and subsequent damages claimed? Since fraud is alleged there should be proof beyond reasonable doubt. There is in my view nothing to warrant the award of damages. There was no basis for it.
Accordingly, that issue i.e Issue No. 3 is resolved in favour of the Appellant and against the Respondent.
Regarding Issue No. 4, which is
“Whether the orders for the payment of interest on the judgment sums, and at the rate of 21% per annum is not perverse.”
It is trite that, it is imperative for a claimant to plead “interest claimed” in his Statement of Claim, to entitle him to benefit therefrom. But it has to be proved either by fact, law, agreement or by statute. Upon what evidence was the order to pay costs Predicated?
Claim for interest, is one for special damages, which must be pleaded specifically, and proved by cogent and credible evidence. I adopt the case cited by learned Counsel for the Appellant viz S.A.F.P. & U & ORS V. UBA PLC (2010) 17 NWLR (Pt. 1221) P.192, where the Supreme Court held inter alia, that not only must claim for interest be pleaded, but must be proved strictly, with particulars. The basis of the claim for interest must be made manifest on the pleadings.
There is nowhere on the pleadings and evidence adduced, where the issue of the payment of interest came up. Where, may I ask, did the learned trial Judge get her inspiration from?
The Respondent was obligated to show that there was an agreement between the parties, or that the interest claimed accords with merchantile custom, or trade usage, known to them, or statutorily.
I am of the view, as rightly postulated by learned counsel for the Appellant, that the award of interest is without basis, and same is perverse and must be set aside and same is hereby set aside.
This issue is resolved in favour of the Appellant and against the Respondent.
I must re-iterate that a claim for pre-judgment interest, being one of right must be pleaded and proved. In HANSA V. F.B.N. PLC, it was held inter alia, that pre-judgment interest must be claimed by the Plaintiff in his Writ of Summons and evidence subsequently adduced in proof of it, failing which the Court will not award it. Per Mshelia J.C.A in STABILINI VISINANI VS. METALUM LTD. (2008) 9 NWLR (Pt. 1092) 416 at 433.
The cardinal rule of pleadings, has the object to compel parties to define precisely, the issue upon which the case, between them is to be contested.
In the instant case culminating in this appeal, the Respondent claimed pre-judgment interest in his Writ of Summons and the Statement of Claim, but there was no evidence to buttress it. That claim therefore goes to no issue, as pleadings do not constitute evidence.
This issue is resolved in favour of the Appellant and against the Respondent.
The result is that the Appeal succeeds in part.
Accordingly, the Judgment of the lower Court Coram A.A. Philips J. of the High Court of Lagos State of the 11th day of June, 2009 is hereby set aside.
N30,000 costs in favour of the Appellant.
K.B. AKAAHS, J.C.A.: I read in draft the leading judgment of my learned brother, Pemu JCA. The issues were well set out and exhaustively considered. I agree with the reasoning and conclusion that the appeal is meritorious and is hereby allowed. I wish to say that notwithstanding the view taken by the Supreme Court in Samba Petroleum Ltd & Anor v U.B.A. Plc & Ors (2010) 5 – 7 SC (Pt. II) 22 that all issues canvassed by a party at the trial should be considered and pronounced upon, I am of the considered view that the fact that a trial Judge failed to consider seriatim the issues raised by the party will not automatically lead to a conclusion of lack of fair hearing if the trial Judge formulated his own issues which touch on the main claim upon which the decision was reached. See SHA (JNR) v KWAN (2000) 8 NWLR (Pt. 670) 685. After all it is not every issue canvassed by a party that will lead to the resolution of the main issue in controversy.
The appeal is allowed. I abide by the consequential order made as to costs.
HON. JUSTICE I.M.M. SAULAWA, J.C.A.: I concur with the reasoning and conclusion reached in the judgment just delivered by my learned brother, the Hon. Justice R.N. Pemu, JCA to the effect that the appeal is meritorious. Hence, the appeal is hereby allowed by me in part. I abide by the consequential orders setting aside the judgment of the lower court, delivered on 11/6/09, and costs of N30,000.00 awarded in favour of the Appellant.
Appearances
Dr. J. Nwobike (SAN);
Basit T. Owolabi Esq.For Appellant
AND
Chukwudi Adiukwu Esq.For Respondent
