UBA PLC v. BHAKOR CONSULT LTD
(2022)LCN/16527(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 20, 2022
CA/ABJ/CV/893/2020
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA PLC APPELANT(S)
And
BHAKOR CONSULT LIMITED RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
In the resolution of the issue, I accede to the established legal principle that It is trite law as contended that jurisdiction is the fulcrum, the centerpiece or the main pillar upon which the validity of any decision of a Court of law stands and around which the issues rotate. See Dangana vs. Usman (2012) LPELR-7827 (SC), First Deep-Water Discovery Ltd vs. Faick Petroleum Ltd (2020) LPELR-49783 (CA). The lifeblood of every adjudication, for a Court without jurisdiction is likened to an animal without blood. The issue of jurisdiction is so crucial and fundamental that it can be raised at any stage of adjudication, including for the first time on appeal, and that which must first be settled, before venturing to the determination of the issue in dispute. See Okonkwo vs. Ngige (2007) LPELR-2485 (SC). Indeed, where a Court forms the view that it has no jurisdiction in the matter, it has the right to raise and determine it without hearing from the parties. See Gaba vs. Tsoida (2020) 5 NWLR (pt. 1716) 1 AT 30. The position advanced by the learned counsel for the appellant, supported by the cases of National Electoral Commission vs. Uboh (2001) FWLR (pt. 55) 501 AT 509, and Bakoshi vs. Chief of Naval Staff (supra) agrees with that state of the law. PER BARKA, J.C.A.
FACTORS TO BE CONSIDERED IN DECIDING THE EFFECT OF NON-JOINDER OR MISJOINDER OF A PARTY
In the resolution of the issue, I beg to rely on the guidance of the Apex Court in the case of Azubuike vs. PDP & Ors (2014) ALL FWLR (pt. 732) 1651, per Fabiyi, JSC thus:
“This Court per Oputa, JSC in the same case of Green vs. Green (1987) 3 NWLR (pt. 60) 480 laid it down that in order to decide the effect of non-joinder or misjoinder of a party, the Court should ask itself the following questions:
i. Is the cause or matter liable to be defeated by non-joinder?
ii. Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant?
iii. Is the third party a person who should have been joined in the first instance?
iv. Is the third party a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter.
See also Uku & Ors vs. Okumagba & Ors (1974) LPELR-3350 (SC). PER BARKA, J.C.A.
THE POSITION OF LAW ON THE RELATIONSHIP BETWEEN A BANKER AND CUSTOMER
It is the law as rightly stated in the case of Sani Abacha Foundation for Peace and Unity & Ors vs. United Bank for Africa (2010) 2 FWLR (pt. 527) 4519 that:
“it is a settled principle of banking law that any money paid into a bank belongs to the banker from the moment of such payment; thus creating as between the banker and the customer a debtor/customer relationship. Indeed, what the banker pays out is its own money. I may cite with approval the underlying principle in this regard as per Idigbe J as he then was, in R vs. Okon (1933-1966) 1 NBLR 241 AT 253 to the effect that “when money is paid by a customer into the bank there is a contract between the banker and the customer in which the banker receives the money as a loan from the customer against the promise by the banker to honor the customer’s cheque or other orders of the customer”
See also Yesufu vs. African Continental Bank Ltd (1981) LPELR-3524 (SC). Thus, the relationship between banker and customer in the absence of any express provision or agreement between the parties is implied from the course of business between them. See Allied Bank of Nigeria Ltd vs. Akubueze (1997) 6 NWLR (pt. 509) 374. PER BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal and cross-appeal arose as a result of the ruling and judgment of the High Court of the Federal Capital Territory, sitting at Kubwa, Abuja in Case with No. FCT/HC/CV/3261/2017 delivered on the 18th day of September, 2020. By the said judgment which was delivered on the 18th day of September, 2020, the trial Court at the end of proceedings concluded that:
“Having analyzed the evidence/exhibit tendered in this case by both parties it is very clear that there was a breach by the defendant. The plaintiff was able to establish this breach through testimony of their witness and documents tendered as exhibits. The Defendant was not able to counter or controvert these issues and facts and evidence. The feeble attempts they made to do was not strong enough to persuade this Court to hold that they were not in breach.
This Court has no reason not to enter judgment in favor of the plaintiff since they have established their claims against the defendant in this case.”
In brief, the background facts generating the action before the lower Court leading to the instant appeal was commenced by a writ of summons filed by the plaintiff on the 23rd day of October, 2017, wherefore the plaintiff prayed for the following reliefs:
i. A declaration that upon a true and proper construction of the Advance Payment Guarantee No. 17010 dated 13th day of April, 2015, issued by the Defendant to Messrs. Integra Renewable Energy Services Ltd, the guaranteed sum therein could only be called in or demanded by the employer mentioned therein.
ii. A declaration that by the terms of the advance payment guarantee No. 17010 dated 13th day of April, 2015, issued by the Defendant to Messrs. Integra Renewable Energy Services ltd, the defendant was no longer bound by the terms of same after the 12th day of October, 2015, and was duty bound to release the sum paid to the Plaintiff thereunder after the said date.
iii. A declaration that the defendant is in breach of the Banker- Customer relationship/contract with the plaintiff when it unilaterally denied the Plaintiff access to her funds in the sum of N78,650,000.00 (Seventy-Eight Million Six Hundred and Fifty Thousand Naira) only, on account of the advance payment guarantee dated 13th day of April, 2015, which was neither cancelled nor called in by the employer and which validity period had since expired.
iv. A declaration that the defendant has no justification whatsoever in refusing, failing, neglecting to pay or otherwise withholding and denying the Plaintiff access to the sum of N78,650,000.00 (Seventy-Eight Million, Six Hundred and Fifty Thousand Naira) only, which was duly paid into the Plaintiffs account no. 1017523168 by her Employer Integra Renewable Energy Services Ltd.
v. A declaration that the refusal of the defendant to pay, release to and/or grant plaintiff access to the balance contract sum of N78,650,000.00 (Seventy-Eight Million, Six Hundred and Fifty Thousand Naira) only, despite the requests and demands of both the Plaintiff and the Employers under the advance payment guarantee, constitutes a flagrant breach of the duty owed plaintiff by defendant.
vi. An order of this honourable Court mandating the plaintiff to immediately release and pay to the Plaintiff the sum of N78,650,000.00 (Seventy-Eight Million, Six Hundred and Fifty Thousand Naira) only, being the balance contract payment made to the Plaintiff by the employer Messrs Integra Renewable Energy Services Ltd through the Plaintiff’s account no. 1017523168 domiciled at the Ahmadu Bello Way, Garki 2, Abuja, FCT, Branch of the Defendant.
vi. An order mandating the defendant to pay to the plaintiff a sum representing 20% interest per annum based on the applicable bank’s lending rate, on the above sum of N78,650,000.00 (Seventy-Eight Million, Six Hundred and Fifty Thousand Naira), calculated from the 1st day of July, 2015 till the date of judgment.
vii. An order mandating the defendant to pay to the Plaintiff the total sum of N159,334,000.00 (One Hundred and Fifty-Nine Million, Three Hundred and Thirty-Four Thousand Naira) only, being the loss of business profit incurred by the plaintiff on the account of breach of the defendant’s banking obligations to the Plaintiff.
ix. The sum of Five Hundred Million Naira (N500,000,000.00) as General and Exemplary damages.
x. The sum of Ten Million Naira (N10,000,000.00) as the cost of this action.
xi. Interest on the judgment sum at the rate of 10% per annum from the date of judgment till final liquidation of the judgment sum.
It was the case made out by the plaintiff, as can be gleaned from the brief which he filed, that by a service agreement made in December of 2014, as well as an addendum thereto, dated the 4th day of March, 2015, the Plaintiff’s Company Bhakor Consult Ltd, and the contract Employer Integra Renewable Energy Services Ltd entered into a contract agreement for the delivery of 100,000 units of Double Burner Portable Gas Cooker Stoves, and to facilitate the terms of the contract, the contract employer agreed to make an advance payment of the sum of N157,500,000 (One Hundred and Fifty-Seven Million, Five Hundred Thousand Naira) to the plaintiff upon the condition that plaintiff provides the contract employer with an advance payment Guarantee binding a reputable bank to the contract employer. This the plaintiff did, and the sums of N157,500,000.00 was deposited into the 1st respondent’s account domiciled with the appellant pursuant to the stipulations in the APG which came into effect on the 23rd of April, 2015. The next day, the bank released 50% of the sums lodged in the respondent’s account to enable him commence the supply of the contract items. It seems clear from the record that there seems to be some misunderstanding on the extent of the execution of the contract, and various communications on the issue ensured between the parties, leading to the respondent being denied access to the balance of the sums lodged in the appellants account by the employer of the respondent. In the ensuing misunderstanding, the respondent as plaintiff sued the defendant now appellant, asking for the reliefs earlier mentioned. Appellant filed a notice of preliminary objection which was moved and the ruling thereon reserved. Sundry applications including an application to amend. The ruling on the preliminary objection as well as the judgment of the Court was delivered on the 18th of September, 2020, and while the preliminary objection was dismissed with costs, the judgment was entered for the respondent in terms of the reliefs sought.
It is obvious that appellant was displeased with the judgment of the trial Court, and in consequence of which, filed a notice of appeal on the 19th day of October, 2020, predicated on twelve grounds of appeal. With the appeal entered to this Court on the 27th day of October, 2020, appellant proceeded to file a brief of argument on the 2nd day of November, 2020, and upon the receipt of the appellant’s brief, the respondent filed a brief incorporating arguments with respect to the cross-appeal also filed on the 20th day of October, 2020 and predicated on four grounds on the 26th day of November, 2020. The cross-respondent’s brief dated the 21st of December, 2020 was filed on the same date.
On the 24th of February, 2022, the appeal was eventually heard with the parties identifying their processes adopting the same and urging the Court to grant their respective positions.
In the brief settled by G. Ofodile Okafor SAN for the appellant, the following issues were formulated for the resolution of the appeal:
i. Whether the learned trial Judge had the jurisdiction to hear and determine this case in the absence of Integra Renewable Energy Services Limited (IRES) and Keystone Bank Limited (KBL), who are necessary parties to some of the issues raised in the claim.
ii. Whether the judgment which is based partly on the originating Statement of Claim and on the amended Statement of Claim without Witness Statement on Oath is not a nullity.
iii. Whether in the circumstance and facts of this case the Appellant is in breach of Banker-Customer relationship.
iv. Whether the Respondent proved any breach which is attributable to the Plaintiff and therefore entitled to the reliefs claimed.
v. Whether the award of N25 Million loss of profit was proved and if the answer is in the affirmative whether the award was not excessive and punitive and whether the award of N5 Million general damages is not double compensation.
In the brief settled by Chibuike Ezeakwuora, for the Respondent, the following issues were formulated for the resolution of the appeal:
i. Whether the lower Court retained jurisdiction to hear and determine this case as constituted in terms of the parties before it.
ii. Whether given the nature of the amendment of the originating processes sought by the Respondent at the lower Court, as well as the stage of the proceedings whereat the amendment was granted, it was necessary for the respondent to file another witness statement on oath.
iii. Whether the respondent established her case before the lower Court and therefore entitled to the reliefs claimed and granted by the lower Court. iv. Whether the trial Court was right in awarding general damages to the respondent in addition to other reliefs granted.
This appeal shall be considered upon the issues formulated by the appellant which in any case are the same with that crafted by the respondent save for the language used. In so doing, I intend to attend to issues 1 and 2 differently, but consider issues 3, 4 and 5 at the same time owing to the fact that the issues correlate to each other.
ISSUE ONE
Whether the learned trial Judge had the jurisdiction to hear and determine this case in the absence of Integra Renewable Energy Services Limited (IRES) and Keystone Bank Limited (KBL), who are necessary parties to some of the issues raised in the claim.
The learned counsel for the appellant referred this Court to the case of Gbeje vs. Oke (2018) 10 NWLR (pt. 1627) 382 AT 393, where jurisdiction was defined as the power of the Court deciding a matter in controversy, submitting that for a Court to be competent to hear a matter before it, it must be properly constituted as regards numbers and qualification of the members on the bench, the subject matter must be within jurisdiction and the case initiated by due process of the law. The cases of Madukolu vs. Nkemdilim (1962) 2SCNLR 341, Skenconsult Nig. Ltd vs. Ukey (1981) 1SC 6 AT 26 amongst others were cited and relied upon. He argued that any defect in the competence of the Court is fatal and the proceedings a nullity, submitting further that one of the cardinal requirements that will imbue the Court with jurisdiction is that the parties or persons to be affected by its decision must be duly summoned with the processes of the Court, and relied on Ayoade vs. Spring Bank Plc (2014) 4 NWLR (pt. 1396) 93 AT 129. Learned counsel then stated that parties are classified into proper, desirable or necessary parties, and cited Dapialong vs. Lalong (2007) 5 NWLR (pt. 1026) 199 in that regard. He submits that a necessary party to a suit is that party who is not only interested in the subject matter of the proceedings, but also a party in whose absence the proceedings could not be effectively dealt with, and relied on Green vs. Green (1987) 3 NWLR (pt. 61) 480 AT 483.
Learned counsel submits that Integra Renewable Energy Services Ltd and Keystone Bank Ltd (hereinafter referred to as IRES LTD) is a necessary party as their presence is crucial to the resolution of the case and ought to have been made parties for the effective adjudication of the case. He contended that in the absence of IRES Ltd, the Court cannot determine whether there was a breach by the respondent or not. Similarly, learned counsel submits that Keystone Bank Plc which gave the notice of default against the respondent is a necessary party as the Court cannot determine whether exhibit 14 constituted a valid recall in his absence. He maintained on the authority of Bashir vs. Audu (1999) 5 NWLR (pt. 603) 433 AT 439 that a person whose presence is crucial and fundamental to the resolution of a matter before the Court must be made a party to the proceedings, the test for determining whether a person has interest in the matter being whether the person could have been joined and relied on the case of EFP Co. Ltd vs. NDIC(2007) 9 NWLR (pt. 1039) 216.
Learned counsel insists that it would have been proper for the respondent to have joined IRES Ltd and Keystone Bank in the suit in that they were privy to the contract between the respondent and IRES Ltd and the money paid by IRES Ltd and Keystone. He referred to exhibits 1 and 2, and contended that the respondent had a duty to bring to Court IRES Ltd and Keystone Bank Ltd whose presence is crucial and relied on Adisa vs. Oyinwola (2000) 6SC (pt. II) 47. Failing to do that according to the learned counsel robs the Court of the jurisdiction to entertain the suit, and reliance was placed on ADC vs. Bello (2017) 1 NWLR (pt. 1545) 112 AT 138. He argued that there are four parties to the contract, the appellant, the respondent, IRES Ltd and Keystone Bank Ltd, but only two of those parties are before the Court, maintaining that when proper parties are not before the Court, the Court is without jurisdiction to entertain the case, relying on Amuda vs. Ajobo (1995) 7NWLR (pt. 406) 170 AT 182, and ADC vs. Bello (supra), and finally urged the Court to resolve the issue in favor of the appellant.
Responding to the issue, the learned counsel for the respondent alluded to the ruling of the lower Court on the issue based on the preliminary objection raised by the appellants before it, and submits that the ruling by the lower Court on the issue represents the position of the law on the point.
He argued that in determining who proper parties in an action should be, of the position that the Court needs to only look and consider the respondent’s cause of action endorsed on the writ of summons, and relied on Bakare & Ors vs. Ajose-Adeogun & Ors (2014) LPELR-25024 (SC), contending that a person can only be joined as a defendant if the right to a relief is alleged to exist against him, and Order 13 Rule 1 of the High Court of the Federal Capital Territory Civil Procedure Rules were referred to. It is his submission that the lower Court considered and rightly found that the claims of the respondent in no way revealed any complaint, grievance, reliefs or prayers or any actionable cause of action against IRES Ltd and Keystone Bank Ltd and therefore cannot be necessary parties to the suit.
Submitting still, counsel argued that the insistence of the appellant that IRES Ltd be made a party is over the contract of supply between the respondent and Integra, for which appellant now claims was breached, and argued that appellant cannot foist a claim of breach of contract between the respondent and Integra on the respondent when such a case has not been made in the writ of summons and the claim before the Court.
In the resolution of the issue, I accede to the established legal principle that It is trite law as contended that jurisdiction is the fulcrum, the centerpiece or the main pillar upon which the validity of any decision of a Court of law stands and around which the issues rotate. See Dangana vs. Usman (2012) LPELR-7827 (SC), First Deep-Water Discovery Ltd vs. Faick Petroleum Ltd (2020) LPELR-49783 (CA). The lifeblood of every adjudication, for a Court without jurisdiction is likened to an animal without blood. The issue of jurisdiction is so crucial and fundamental that it can be raised at any stage of adjudication, including for the first time on appeal, and that which must first be settled, before venturing to the determination of the issue in dispute. See Okonkwo vs. Ngige (2007) LPELR-2485 (SC). Indeed, where a Court forms the view that it has no jurisdiction in the matter, it has the right to raise and determine it without hearing from the parties. See Gaba vs. Tsoida (2020) 5 NWLR (pt. 1716) 1 AT 30. The position advanced by the learned counsel for the appellant, supported by the cases of National Electoral Commission vs. Uboh (2001) FWLR (pt. 55) 501 AT 509, and Bakoshi vs. Chief of Naval Staff (supra) agrees with that state of the law.
I understand the substance of the grouse of the learned counsel for the appellant as contending that the proper parties necessary for the hearing of the case were not before the Court and by the authority of Bashir vs. Audu (supra), Adisa vs. Oyinwola (2000) 6 SC (pt. 11) 47 and ADC vs. Bello (2017) 1 NWLR (pt. 1545) 112 AT 138, that which robs the adjudicating Tribunal or Court the jurisdiction to entertain and determine the action. The trial Court while entertaining the same question in its ruling on the preliminary objection, located at pages 482-498 was of the view that the proper parties were before it, and thereby proceeded in the determination of the substantive case. The question begging for an answer is whether Integra Renewable Services Limited and Keystone Bank Ltd are necessary parties for which their non-joinder necessarily affected the jurisdiction of the trial Court?
In the resolution of the issue, I beg to rely on the guidance of the Apex Court in the case of Azubuike vs. PDP & Ors (2014) ALL FWLR (pt. 732) 1651, per Fabiyi, JSC thus:
“This Court per Oputa, JSC in the same case of Green vs. Green (1987) 3 NWLR (pt. 60) 480 laid it down that in order to decide the effect of non-joinder or misjoinder of a party, the Court should ask itself the following questions:
i. Is the cause or matter liable to be defeated by non-joinder?
ii. Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant?
iii. Is the third party a person who should have been joined in the first instance?
iv. Is the third party a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter.
See also Uku & Ors vs. Okumagba & Ors (1974) LPELR-3350 (SC).
Accordingly, and having carefully examined the amended writ of summons as well as the amended statement of claim located at pages 279-284 of the record, I am left in no doubt and do agree with the lower Court that it is the bank, the defendant thereat, who having failed to allow the plaintiff now appellant access to its funds lodged in the said bank that is a necessary party, and not Integra or Keystone Bank, the said sums of money having been lodged in the account of the plaintiff lodged with the defendant. Indeed, Integra cannot be a necessary party, since there is nowhere shown that the said Integra or Keystone Bank played any role in refusing the plaintiff access to its account lodged with the defendant. The argument made that because the stated Integra and Keystone Bank funded the said funds belonging jointly to Integra Renewable Energy Services Ltd and Keystone Bank does not in the circumstance make them necessary parties and to that extent, that argument is not available to the appellant since the two bodies were not shown to have any hand in the non-disbursement of the funds between the Bank and its customer the plaintiff. I agree with the respondent and the lower Court that there was no grievance tailored against the Integra and or Keystone bank, and thereby resolve the issue against the appellant.
ISSUE TWO
Whether the judgment which is partly based on the originating statement of claim and on the amended statement of claim without witness statement on oath is not a nullity.
This issue correlates with the respondent’s issue 2, and argued at pages 12-17 of the brief. It is submitted for the appellant relying on the decisions of Oforishe vs. NGC Limited (2018) 2 NWLR (pt. 1602) 35, House of Reps vs. SPDCN (2010) 11 NWLR (pt. 1205) 213 AT 260, Garan vs. Olomu (2013) 11 NWLR (pt. 1365) 227 AT 254, that amendment relates to the original pleadings, and once there is amendment it automatically means that what stood before the amendment is no longer material and fails to define the issues before the Court. Learned counsel submitted that the respondent having applied to amend its originating process, and to deem the amended writ of summons and statement of claim reflecting the amendment as having been properly filed and served, which application was granted, that superseded the original process filed rendering it immaterial. He argued that by the law on front-loading, the statement of claim shall be accompanied with a statement of the witnesses to be called on oath and all sundry documents, and where not done, the pleadings are rendered incompetent, and the case of Alelu vs. Eze (2015) 13 NWLR (pt. 1475) 74 AT 99 was relied upon. He argued that the effect of an amendment of a Court process is that it takes effect from the date of the original document sought to be amended, relying on Okafor vs. BDU Jos Branch (2017) 5 NWLR (pt. 1559) 385 AT 407, Popoola vs. Babatunde (2012) 7 NWLR (pt. 1299) 302 AT 326 amongst others. Learned counsel also submitted that the duty of the Court is to adjudicate on matters or issues in dispute, and thereby bound by the pleadings as against embarking on a journey of discovery. He faulted the trial Court’s consideration of the witness statement on oath as well as the attached documents to be relied upon in the original statement of claim which had been discarded, the respondent having pleaded facts without evidence.
He states that where a writ of summons and statement of claim are incompetent, a Court would be devoid of jurisdiction to entertain the matter, and the cases of Yusuf vs. Mobil (Nig) Plc (supra), and Green Fingers Ltd vs. Musawa (2017) 5NWLR (pt. 1558) 308 AT 334 relied on. He contended that the provisions of Order 25 Rules 1, 2 and 3 of the FCT High Court Civil Procedure Rules 2018 are sacrosanct, as rules of Court are made to be obeyed. He argued also that a witness statement on oath cannot precede the statement of defence, positing that the argument that all the Court did was to change the name from Bakhor to Bhakor as hollow, contending that there was no such application for the changing of the name simpliciter. He goes on to posit that the judgment of the Court premised on the invalid and discarded statement of claim and witness statement of claim constituted a fundamental defect which robbed the trial Court of its jurisdiction. He urged the Court to resolve the issue in favor of the appellant.
Responding, the learned counsel for the respondent holds the view that appellants are only deploying technicalities in the attempt to torpedo the judgment of the lower Court. He posits that all the respondent did was to correct the typographical error that was occasioned from Bakhor to Bhakor and further that the motion was brought after parties had called their witnesses and closed their respective cases and there being no need to call further or any witness. He referred to the prayer in the application, clearly indicating that respondent had no intention of calling any further evidence.
The purpose of the amendment counsel argued, was to bring the pleadings in line with the evidence already on record. He is of the view that the case ofGreen Fingers Ltd vs. Musawa (supra) relied on by the appellant’s counsel is not applicable, rather commending to the Court the case of Chief Adekeye vs. Chief Akin-Olugbade (1987) 3 NWLR (pt. 160) 214 AT 224. He urged the Court not to be dragged to the era of technicalities, relying on Amaechi vs. INEC (2008) LPELR-446 (SC) and thereby urged the Court to resolve the issue against the appellant.
I have no difficulty agreeing with the learned counsel for the respondent that an amendment can be made at any stage of the proceedings, even on appeal so as to bring the real issue in controversy before the Court. Truly what defined the area for which the application was made, was to correct the word Bakhor to read Bhakor. In the words of the Apex Court in Chief Adedapo Adekeye vs. Chief Akin-Olugbade (supra) AT 224, it was held that:
“The Court should allow all amendments that are required for the purpose of using already available evidence and what is more using the findings of facts of the trial Court. The Court does not set a time limit to do justice and in the same vein it does not or perhaps also cannot set a time limit to grant an amendment designed to achieve justice between the parties … the main concern of the Court in granting or refusing to grant an amendment is the interest of justice. All amendments ought to be granted if thereby justice is done between the contending parties.”
Learned counsel for the appellant had argued that the trial Court was in error in placing reliance on the evidence adduced in the original pleadings since the said original pleadings and all accompanying processes are no longer there, and by the authority of Green Fingers Ltd vs. Musawa (supra) non-existent. It needs mentioning as submitted, what the respondent needed to amend is the name indicated earlier for which evidence had already been adduced upon. Obviously as ably argued the case of Green Fingers Ltd vs. Musawa (supra) is clearly distinguishable from the case under consideration. For whereas, evidence was adduced in the Green Fingers case after the amendment, no such evidence was necessitated in the case at hand, evidence having been adduced before the amendment, and most importantly whereas there was evidence already in existence before the Court, before the application to amend the name in evidence, the legal principle established in the Green Fingers caseand based on the amended but non-existent pleadings, is inapplicable. This is because the situation here must be placed on a different precinct to that general position of the law which is to the effect that amendment dates back to the date of the original process, and once granted it is as if the original does not exist. See Azogor vs. State (2019) ALL FWLR (pt. 990) 1409 AT 1441. Even though this does not mean that a process that has been amended does not cease to exist for the purpose of the record of the Court, but that after the amendment, the amended process ceases to determine the issues in controversy. See Stanbic IBTC Holding Ltd vs. FRCN (2020) 5NWLR (pt. 1716) 91. The amendment sought here is outrightly innocuous and rejecting it would be akin to the situation painted by the Apex Court in the case of Amaechi vs. INEC (2008) LPELR-446 (SC), where the Court posited that:
“The sum total of the recent decisions of this Court is that the Court must move away from the era when adjudicatory power of the Court was hindered by a constraining adherence to technicalities. This often results in the loser in a civil case taking all the laurels while the supposed winner goes home in a worse situation than he approached the Court”.
From the above deductions therefore, I am in agreement that the case under consideration does not correlate with the situation treated in the Green Fingers case, the amendment sought being to correct a simple typographical error for which evidence had already been given based on the pleadings before it. To see the situation differently and or to agree with the learned counsel for the appellant is to give impetus to sheer technicality and this I must not do.
Consequently, the contention by the appellant is not carried out, and I must and do resolve this issue against the appellant.
Issues Three, Four and Five
Whether in the circumstance and facts of this case, the Appellant is in breach of Banker-Customer relationship.
Whether the Respondent proved any breach which is attributable to the Plaintiff and therefore entitled to the reliefs claimed.
Whether the award of N25 Million loss of profit was proved and if the answer is in the affirmative whether the award was not excessive and punitive and whether the award of N5 Million general damages is not double compensation.
It is the submission of the learned counsel that the relationship between a bank and its customer is contractual, and relied on Purification Tech. (Nig) Ltd vs. AG Lagos State (2004) 9 NWLR (pt. 879) 665. Learned counsel also made reference to the case of First Bank of Nigeria Plc vs. African Petroleum Ltd (1996) 4 NWLR (pt. 443) 44 on the traditional role of a bank in relation to its customer, and Nwosu vs. Zenith Bank Plc (2015) 9 NWLR (pt. 1464) 314 AT 334 on the true position of the law on banker and customer relationship, contending that an Advance Payment Guarantee (APG) is a different contract from the contract created between a banker and its customer. He cited the case of Chami vs. UBA Plc (2010) 6 NWLR (pt. 1191) 474 SC AT 501 on the definition of guarantee, contending that the relationship between the appellant and the respondent in relation to the APG is a special contract with its peculiarities. Submitting also that parties are bound by the terms in their contractual agreement which the Court is bound to enforce, the respondent from the APG defaulted by failing to supply the double stove gas cooker in line with the terms of the agreement in the APG, leading to the letter exhibit 14 seeking for the remedy in respect of the default. He also referred to exhibits 9, 10 and 11 from IRES urging the appellant to release more funds to the respondents. He also referred to exhibit 15 advising the appellant to restrict access of the respondent to the undisbursed money. Learned counsel maintained that the appellants were not in breach of its customer banker relationship with the respondent as there were conflicting instructions by the beneficiaries of the APG with respect to the balance of the money with the appellant. He alluded to clause 8 of the APG, contending that from the intendment of the said clause there was no duty on the appellant advancing the whole amount without monitoring how the money is being utilized. He states that the whole of the sums of N157,000,000.00 or part thereof belongs to the two beneficiaries and unless the sums are utilized for the contract, it does not become the respondent’s money, and even if APG expires, the money cannot be said to belong to the respondent since it was for a specific purpose. Further submitting on whether the respondent proved any breach which is attributable to the appellant and therefore entitled to the reliefs claimed, learned counsel submits that he who asserts must prove he made reference to item d and f, forming the reliefs which the respondent urged upon the Court to grant, contending the appellant had the right to and duty to deny the respondent access to the money as the relationship between the appellant and the respondent is not simple banker customer relationship, but an arrangement where appellant agreed to be a surety to the respondent by an agreement termed APG. Learned counsel insists that appellant was in no way in breach of the APG as the money does not belong to the respondent and therefore urged the Court to resolve the issue in favor of the appellant.
Also on the issue, whether the award of N25,000,000.00 was proved and if the answer is in the affirmative, whether the award was not excessive and punitive and whether the award of N5 Million general damages is not double compensation, it was the contention of the learned counsel for the appellant, that generally, damages includes both special and general damages, which are not awarded as a matter of course but guided by some basic solid principles, and the case of Effiong vs. Ata Isi Supplies and Services Ltd & Ors (2011) 6 NWLR (pt. 1242) 266 AT 276 was relied on. While also submitting that special damages must be specifically and specially pleaded and proved, goes further to submit that a claim for loss of profit is also a claim for special damages and cited NBCI vs. Alfijir Mining (Nig) Ltd (1993) 4 NWLR (pt. 287) (CA) in support of the legal preposition. He complained that respondent tendered exhibits 4, 12 and 13, which were dumped on the Court without tying them to the case, the Court still in the comfort of her chambers gave value to the exhibits. He submits that the issue of loss of profit was not proved, thus the award of 25 Million Naira on account of loss of profit not in accordance with the laid down principle of law cited in the cases under reference.
In further submission, it was contended that the 25 Million Naira awarded for the loss of profit was excessive and punitive and cited NCC vs. Motophone Ltd (2019) 14 NWLR (pt. 1691) 1 AT 34.
Submitting further, learned counsel submitted that the further award of Five Million Naira as general damages amounts to double compensation relying on Oando (Nig) Plc vs. Adijere (WA) Ltd (2013) 15 NWLR (pt. 1377) 374 (SC). In urging the Court to interfere with the award of damages, learned counsel commended the case of British Airways vs. Atoyebi (2014) 13 NWLR (pt. 1424) 253 AT 287 among others. He finally urged the Court to resolve those issues in favor of the appellant.
The appellant’s three issues were responded to by the respondent under its issues 3, and 4 to wit, whether the respondent established its case before the lower Court and therefore entitled to the reliefs claimed and granted by the lower Court, and whether the trial Court was right in awarding general damages to the respondent in addition to other reliefs granted. Therein it was contended that the learned trial Judge rightly upheld the contention of the respondent to the effect that the appellant breached the duty it owed her and therefore found the respondent’s case established. He drew the Court’s attention to paragraph 16 of the statement of claim, contending that the respondents case before the lower Court was two pronged, firstly complaining that appellant having received funds to her credit, appellant had no justification refusing her access to the said money or to dishonor her request to access or draw from the funds, and secondly that even if the APG was applicable to the parties or the funds paid into the respondent’s bank account domiciled with the appellant by the interpretation of the terms of the APG, the said APG did not operate as to justify the appellant’s refusal to honor the request to draw from the funds in the account. Learned counsel states that the fact that funds were posted into the respondent’s account with the appellant, what remained to be settled is whether the excuse given by the appellant for the denial or refusal to grant access to the funds is available to the appellant. He submits that the excuse given by the appellant was the APG, which respondent was able to establish that the excuse is flawed for the reasons enumerated in the brief. He drew the Court’s attention to the defense for the denial of the use of the funds at paragraph 7(e) and (f) of the statement of defence, submitting that the DW1 did state in evidence that the refusal to grant access to the respondent to access funds was due to exhibit 14 being a letter or call said to have been written or made by Keystone Bank, which defence did not avail the appellants. Learned counsel summed up by submitting that the trial Court was therefore right in finding that there was a gross breach of duty owed the respondent’s customer by the appellant bank as the withholding of the respondent’s funds despite demand was unjustifiable.
On whether the trial Court was right in awarding general damages to the respondent in addition to other reliefs granted, it was argued that being in the nature of special damages being a claim for loss of damages. The respondent’s claim for loss of profit, counsel states that the claim on this prayer is covered by paragraphs 21-26 of the statement of claim, which were not specifically denied, the claim for loss of profit being a special damage that was pleaded and proved, the trial Court was bound to grant the same. He urged the Court to resolve the issue against the appellant.
The aggregate of all the complaints by the learned appellant’s counsel turns on whether the respondent did prove his claim that appellant was in breach of the banker/customer relationship between them and the awards made in that respect.
It is the law as rightly stated in the case of Sani Abacha Foundation for Peace and Unity & Ors vs. United Bank for Africa (2010) 2 FWLR (pt. 527) 4519 that:
“it is a settled principle of banking law that any money paid into a bank belongs to the banker from the moment of such payment; thus creating as between the banker and the customer a debtor/customer relationship. Indeed, what the banker pays out is its own money. I may cite with approval the underlying principle in this regard as per Idigbe J as he then was, in R vs. Okon (1933-1966) 1 NBLR 241 AT 253 to the effect that “when money is paid by a customer into the bank there is a contract between the banker and the customer in which the banker receives the money as a loan from the customer against the promise by the banker to honor the customer’s cheque or other orders of the customer”
See also Yesufu vs. African Continental Bank Ltd (1981) LPELR-3524 (SC). Thus, the relationship between banker and customer in the absence of any express provision or agreement between the parties is implied from the course of business between them. See Allied Bank of Nigeria Ltd vs. Akubueze (1997) 6 NWLR (pt. 509) 374.
The lower Court while attending to the issue from page 516 of the record, pointed out that the existence of the story of the APG and the role of the parties thereon is not in dispute. He noted that the APG signed on the 13th of April, 2015, with a life span of six months had expired by the 12th day of October, 2015. To that end, the lower Court found that the obligation of the respondent as surety expired with the expiration of the APG. Frontally, answering the vexed question whether the respondent was in breach of the banker/customer relationship existing between the parties, the trial Court from pages 518-525 of the record analyzed the evidence placed before it, oral and documentary, and arrived at the conclusion that the respondent had no reason whatsoever to deny the respondent access to its funds and therefore breached the banker/customer relationship.
Mr. Okafor, SAN for the appellant while in tandem with the position of the law with regards to the banker/customer relationship through numerous case law, particularly First Bank of Nigeria vs. African Petroleum Ltd (supra) and Nwosu vs. Zenith Bank Plc (supra) did argue that the relationship created amongst the parties by virtue of the APG, is a special contract with its peculiarities, as the money was not paid by the respondent but by third parties IRES and Keystone Bank.
Indeed the senior counsel is correct having stated that parties to a written contractual agreement are bound by the terms of the contract which the Court was duty bound enforcing once it is not illegal or contrary to public policy. The case of OSHC vs. Ogunsola(2000) 14 NWLR (pt.687) 432 AT 443 cited by the learned senior counsel is apt in the circumstance.
The contention by the senior counsel that appellant and the respondent intended to be bound by the terms of the APG agreement is equally correct and not disputed. Now the learned counsel leveraging on the fact that respondent defaulted by failing to supply the double gas cooker in the terms of the agreement, and this led to exhibit 14 by keystone, but that a contrary letter exhibits 9, 10 and 11 from IRES urged the appellant to release the funds to the respondent in accordance with the APG. He still drew the Court’s attention to exhibit 15, urging the appellant to restrict access to funds from the account by placing a lien on the funds until further notice. This no doubt is what the appellant wants the Court to accept as being the reason for which the respondent was denied access to the funds.
The trial Court faced with this imbroglio found that:
“by the APG which is the binding document between the parties in this suit, the obligation of the defendant started from the day of the APG, which is 13/4/15. It was to last latest till 12/10/15 after which the defendant obligation of supplying the goods as agreed. The same APG stated that unless the call is properly made in writing the defendant should not honor say (sic). Again in the APG, it was stated that the defendant gave the irrevocable guarantee that payment of the advanced fund (in the event of any default) will be made when there is a written demand by the employer. This is stated in paragraph 3 of the APG. That employer is Integra and not keystone bank. It is important to note that the employer as described by the APG is Integra Renewable Energy Services Ltd, from the letter of the APG, Keystone Bank is not a party to the main contract or even the addendum. It is only a co-beneficiary to the APG agreement. The whole APG concerns mainly the plaintiff and Integra save the beneficial side of the agreement”.
The trial Court went further to assert that a letter for the demand of money was made by the respondent to the employer Integra, upon which the employer wrote to the appellant confirming the delivery of the goods. There is the further letter exhibit 10 to the effect that respondent was not in default written in response to the letter written by the Keystone Bank. On exhibit 15, the lower Court noted in its judgment that even though the letter was written by the said Integra Renewable Services, the employer, the period of the APG had expired, and the power of the appellant placing a lien on the stated money also lapsed. In essence, all that the lower Court is saying all this while gravitates to the fact that no justifiable reason is available to the appellant denying the respondent access to the funds in its custody. I am bound to accept the deductions made by the trial Court on the matter. It is trite that a trial Court has the monopoly of assessing the credibility of witnesses having seen and watched the demeanor of the witnesses as they adduce evidence. This advantage enjoyed by the trial Court extends to determining the totality of the evidence and thereby arriving at a particular finding. See Borishade vs. FRN (2012) 18 NWLR (pt. 1332) 347 and Onuoha vs. The State (1989) 2 NWLR (pt. 101) 23. It is not enough to question the evaluation of the evidence adduced before lower Court, the law having stated that he must go further to point out the error he complains about and further that if the error is corrected, the decision of the Court subject of the complaint will not be allowed to stand. See Oluyede vs. Access Bank Plc (2015) 17 NWLR (pt. 1489) 596, Okonkwo vs. Onovo (1999) 4 NWLR (pt. 597) 110.
I have been conscious of the fact that this Court is in the same position with the trial Court in the evaluation of documentary evidence examined minutely the exhibits tendered before the lower Court, most importantly exhibit 2, being the APG agreement and all other documents tendered, my humble view is that the totality of the documentary evidence gave credence to the respondent’s assertion that he was denied access to the funds held to his credit with the appellant’s bank. See Rabiu vs. Adebajo (2012) 5NWLR (pt. 1299) 1322. I agree with the lower Court and the learned counsel for the respondent that in the circumstance of the case, the appellant breached the banker/customer relationship existing between them and by so doing occasioned … I have been referred to clause 8 in the APG, but fail to see how the clause avails the appellant in view of the clear directives by the employer by its letter contained in exhibit 9, asking the appellant to kindly accord Bhakor all necessary assistance and release more funds to them to enable them fulfill the terms of the APG and to deliver the outstanding 22,000. Units of the portable stoves. Further by exhibit 10, the employer did state categorically that Bhakor Consult was not in default of the delivery of the contract items, which he later confirmed that the 22,000 units having been manufactured are ready for delivery. By exhibit 11, the employer still stated that we hereby authorize the further release of N40 Million Naira to Bhakor to enable them promptly fulfil their terms of the APG and deliver the outstanding 22,000 units of the stoves. By this directive, the suggestion that appellant refused the respondent access to the funds because they were policing the said funds cannot avail them. Even where viewed from exhibit 15, when the APG had since lapsed, the request that respondent be availed the funds under the appellant’s custody cannot rightly be denied and to that extent the argument that the money belongs to the two beneficiaries Keystone and IRES not available to the appellant. That apart, at the expiry of the APG, appellant’s right placing a lien on the funds clearly meant for the respondent ceases to operate and the appellant wrong to deny the respondent access to its funds, viewed from the clear wordings of the terms of the contract. I resolve the issue against the appellant.
Lastly, can we say that the award of N25 Million Naira loss of profit was proved and if so, whether the awards made were not excessive and punitive? I have in the circumstance considered the evidence led on the issue, the authorities cited, and the arguments proffered. One fact which clearly and indisputably appears from a careful examination of the contract between the parties Covered by the APG, is that no such term for loss of profit was provided for in the said APG or any contract document. Having so found, It is appropriate to also note that claims founded on loss of profit should not be speculative or sentimental, but based on the normal and presumed consequences of the breach. See P.Z. & Co. Ltd vs. A.J. Ogedengbe (1972) LPELR-2894 (SC). In proving any demand for loss of profit, this Court in Confidence Bureau De Change vs. Francis Ikemefuna Ndeanefo (2016) LPELR-40934(CA), per Agim, JCA as he then was, did state as follows:
“Let me now deal with the second question of the nature and quantum of evidence required to prove the lost net profit or anticipated net profit and whether the appellant proved loss of net profit or anticipated net profit. The nature of the evidence required to strictly prove loss of net profit or anticipated net profit would depend on the peculiar circumstance of each case. See Odulaja vs. Haddad (supra). Where the pleadings and evidence stated the amount earned as gross profit, the amount spent as total cost and the amount earned as net profit within a relevant period is not contradicted, then the lost profit or anticipated profit can be proved on minimal evidence such as the uncontradicted oral evidence of a witness. See Boshali vs. ACE Ltd (SUPRA) and Odulaja vs. Haddad (supra).”
Following on the same path, it was held in Onuigbo vs. Azubuike (2013) LPELR-22796 (CA), that:
“A claim for loss of earnings is special in nature. It is therefore a claim for special damages. In Reynolds Construction Co. vs. Edomwonyi (2003) 4 NWLR (pt. 811) 513, this Court held that “it is not in doubt that the sum of 90,000 awarded to the respondent by the trial Court is loss of earnings. It is trite that loss of earning is a claim in special damages in the sense that full particulars must be given by the plaintiff in his pleadings of his rate of earning and such other facts as may be necessary to enable the Court to calculate as best and as accurate as it can… it is also very well settled that special damages must be supported by evidence which will determine the claim by arithmetical calculation. It is even more so when the claim is for anticipated earning. Special damages must be pleaded and strictly proved by credible evidence before it could be awarded to a party or litigant claiming same in Court of law.”
This Court has been referred to paragraphs 21-26 of the statement of claim. The Court has also been referred to the evidence adduced by the PW1, as well as exhibits 4, 12 and 13. Having carefully perused the evidence, I am not satisfied that the lower Court in holding that appellant proved the anticipated profit averted its mind to the state of the law, most importantly as stated in the cases of Onuigbo vs. Azubuike (2013) LPELR-22796 (CA), and Confidence Bureau De Change vs. Francis Ikemefuna Ndeanefo (2016) LPELR- 40934(CA), It is my humble view that the respondent had not been able to prove as required by law the anticipated profit, and the claim for the award of over N159 Million must fail.
I however hold the view that nominal damages could be awarded by the trial Court where the fact of the loss has been proved, but the necessary evidence as to the amount has not been established. See ACME Builders Ltd vs. Kaduna State Waterboard (1999) LPELR- 65 SC and Confidence Bureau De Change vs. Francis Ikemefuna Ndeanefo (2016) LPELR-40934(CA).
I understand the award made as being for nominal damages, and that being made based on the trial Court’s exercise of discretion, this Court cannot in the circumstance interfere with it. See Obodo vs. Ogba (1987) 2 NWLR (pt. 54) 1. I resolve the issue against the appellant.
Hence having resolved all the issues against the appellant, this appeal fails as lacking in merit and it is hereby dismissed by me.
Cross-Appeal
The cross-appellant filed a notice of cross-appeal on the 20th of October, 2020 anchored on four grounds of appeal against part of the judgment of the lower Court, delivered on the 18th day of September, 2020. In the brief filed by the cross-appellant, the following issues were identified for resolution:
i. Whether the trial Court was right when it ordered that the cross respondent is to pay the cross-appellant 10% interest per annum from the 12/10/2015 till date of judgment instead of interest at the rate of 20% per annum on the sum of N78,650,000.00 being the sum unlawfully withheld from the cross-appellant by the cross respondent calculated from 12/10/2015 till date of judgment.
ii. Whether the trial Court was right when it ordered that the cross respondent is to pay the cross-appellant the sum of N25 Million as loss of profit rather than and instead of the sum of N159,334,000.00 which was claimed, pleaded and established by the cross-appellant as the loss of business profit incurred by her on account of the breach by the cross respondent of the cross respondents banking obligations to the cross-appellant.
iii. Whether the trial Court was right when it ordered that the cross respondent is to pay the cross-appellant interest on the sum at the prevailing government rate from the date of judgment till final liquidation rather than and instead of interest at the rate of 20% per annum as prescribed by Order 37 Rule 4 of the High Court of the FCT (Civil Procedure) Rules 2018.
iv. Whether the award by the trial Court of only the sum of N5 Million as general damages against the cross respondent was not manifestly too low on the standard of reasonableness.
The cross respondent in opposing the cross-appeal, filed a brief, wherein the following issues were crafted for resolution in the cross-appeal as follows:
i. whether the lower Court was right in awarding pre-judgment interest on the judgment sum to the cross appellant at the rate of 10% per annum instead of 20% claimed from the 12/10/2015 till date of judgment.
ii. Whether the learned trial Judge was correct in its decision that cross-respondent shall pay the cross-appellant N25 Million as damages for loss of profit instead of the sum of N159,334,000.00 claimed.
iii. Whether the trial Judge was right to have awarded the cross-appellant a post-judgment sum at the prevailing government rates.
iv. Whether the award of N5 Million general damages was manifestly too low in the circumstance.
I see the two set of issues as that without a difference, and accordingly adopt the issues distilled by the cross-appellant in the determination of the appeal.
ISSUE ONE
Whether the trial Court was right when it ordered that the cross-respondent is to pay the cross appellant 10% interest per annum from the 12/10/2015 till date of judgment instead of interest at the rate of 20% per annum on the sum of N78,650,000.00 being the sum unlawfully withheld from the cross-appellant by the cross respondent calculated from the 12/10/2015 till date of judgment.
The learned counsel for the cross-appellant alluded to his relief F, as sought before the lower Court, contending that cross-appellant having pleaded and led unchallenged evidence at the trial that the cross-respondent was trading on the cross-appellant’s funds being the sums of N78,650,000.000 which the cross respondent unlawfully withheld from the cross-appellant, the lower Court was wrong to have refused to act on the evidence oral and documentary placed before it in awarding the cross appellant’s claim. He cited the cases of Johny vs. Edoja (2007) ALL FWLR (pt. 365) 527 @ 544 and Aliyu vs. Itauma & Anor (2008) LPELR-8455 (CA) supporting the legal principle that averments in a pleading not specifically denied is deemed admitted, and argued that the head of claim was neither countered or denied by the cross respondent. He goes on to argue that the evidence adduced by the cross-appellant’s witness on the issue was not challenged, contradicted or discredited and most importantly, exhibit 13 tendered by the cross-appellant established the fact that cross respondent was trading with the cross appellant’s money at the bank rate of 20%. He alluded to the finding by the lower Court at page 526 of the record, and wondered why the trial Court failed to award the said 20% since the award is not discretionary. He opines that the decision of the trial Court ordering for the payment of 10% as against 20% not being in tandem with the pleaded and established facts before the lower Court which occasioned a miscarriage of justice. He urged the Court to resolve the issue in favor of the cross-appellant and to hold and order that the cross respondent pay to the cross-appellant 20% interest per annum instead of the 10% per annum.
The learned counsel for the cross respondent on the other hand argued that the trial Court was wrong to have awarded the 10% interest, being a pre-judgment interest. Relying on Himma Merchants Ltd vs. Aliyu (1994) 5 NWLR (pt. 347) 667 AT 676, counsel argued that a claim for pre judgment interest is a specie of special damages which must be clearly pleaded and the ground for its awarded demonstrated. He argued still that there was no such evidence in support of the pre-judgment interest of 20% as the amended statement of claim was not supported with any witness deposition. He submitted that the Court cannot act on exhibits 4, 12 and 13 which were merely dumped on the Court. He faulted the trial Court’s holding at pages 521 lines 28-31 of the record, stating that the Court jumped into the arena. He urged the Court to resolve the issue against the cross-appellant.
The Apex Court, while defining the boundary between an award of interest on a judgment which is purely statutory and an award of interest in a pre-judgment which must be specifically claimed and proved. See Berliet Nig Ltd vs. Alhaji Mustapha Kachalla (1995) LPELR-775 (SC). Clarifying the issue further, my Lord Augie, JSC, in the recent case of Skymit Motors Ltd vs. UBA Plc (2020) LPELR-52457 (SC) stated that:
“Pre-judgment is simply a judgment reached before evidence is available. If the claim is for money, the claimant may claim interest up until the date the judgment is given, and that is pre-judgment interest. As this Court observed in Berliet Nigeria Ltd vs. Kachalla (supra), relied on by the Court of appeal there is a clear difference between an award of interest pre-judgment where a plaintiff must specifically claim such and prove it and an award of interest in a judgment debt which is purely statutory and can only be awarded if there are provisions to that effect in the law or rules of Court”.
Paragraph G of the cross appellant’s amended statement of claim is for an order mandating the defendant to pay to the plaintiff a sum representing 20% interest per annum based on the applicable bank’s lending rate on the above sum of N78,650,000.00 calculated from the 1st day of July 2015 to the date of the judgment. On whether the cross-appellant established that claim, the lower Court considered all pieces of evidence, oral and documentary, and at page 526 of the record, concluded that the Court had no reason not entering judgment in favor of the cross-appellant. Not only was that aspect of the claim claimed specifically, but that evidence was adduced by the PW1, and through documentary evidence exhibit 13 showing as posited that the cross respondent traded on the said money in her custody and at a rate not less than 20%. The lending rates stated by exhibits 12 and 13 was not discredited nor denied, leading the lower Court to conclude that the allegation of the defendant using the money to trade is true. It cannot be true therefore, going by that finding, which has not been appealed against to assert at this point that the cross-appellant failed to prove that head of the claim. I see with the cross-appellant, that the trial Court having come to the conclusion that the cross-appellant had proved that head of the claim, was duty bound to award the claim thereon to its full effect which is that the cross respondent pay to the cross-appellant 20% interest per annum on the sums withheld standing at N78,650,000.00 calculated from the 12th day of October 2015 to the date of judgment, which is the 16th of day of September, 2020. I so hold.
ISSUE TWO
Whether the trial Court was right when it ordered that the cross respondent is to pay the cross-appellant the sum of N25 million as loss of profit rather than and instead of the sum of N159,334,000.00 which was claimed, pleaded and established by the cross-appellant as the loss of business profit incurred by her on account of the breach by the cross respondent of the cross respondents banking obligations to the cross appellant.
This issue correlates with the cross-respondent’s issue two, which on the propriety of the lower Court awarding N25,000,000.00 (Twenty-Five Million Naira) failed to award the sums claimed as anticipated profit. Naira as damages for loss of profit, as against the sum of N159,334,000.00 claimed by the cross appellants. Here too the cross appellants are contending that the failure of the cross respondents to release the cross appellant’s money standing to its credit with the cross respondent, entailed its loss of profit amounting to over N159 Million Naira. Learned counsel referred to the averments contained in paragraphs 21, 22, 23, 24, 25 and 26 of the statement of claim, he also referred to exhibit 4, the proforma invoice as well as exhibits 1 and 2 to contend that the loss was far above what was awarded. Learned counsel also referred to the finding of the lower Court at pages 525 of the record, contending that there was no reason why the Court failed to award the sums claimed.
In response, it was the submission of the learned counsel for the respondent that a claim based on loss of profit is a claim in special damages, and the cases of NBCI vs. Alfijir (Mining) Nigeria Ltd (1993) 4 NWLR (pt. 287) CA, and Uwa Printers Ltd vs. Investment True Ltd (1988) (pt. 92) relied upon. The learned counsel also submitted that the award of N25 Million not having followed the laid down principles of law as cited in the two cases cited, it should be held that there was no evidence supporting the averments of the cross-appellant in their paragraphs 24, 25 and 26 of the statement of claim. He urged the Court based on the latter part of his argument in the issue before now to resolve the issue against the cross-appellant.
There is no contending the fact that a claim for loss of profit is a claim founded on special damages. The claim has to be particularized in the pleadings enabling the plaintiff to give evidence thereon by discharging the usual evidential burden of proof in civil cases that is on the preponderance of evidence. The principle is said to be predicated on the evidential doctrine of he who asserts must bear the burden of proof by adducing credible, and admissible evidence. It is the law that any judgment founded on such a claim must be precipitated on legal evidence of the highest probative value and weight. See CBN vs. Beckitt Const. Ltd (2011) 5 NWLR p. 203, Obere vs. Board Management of Eku Baptist Hospital (1978) 6-7 SC 15. The attention of this Court has been drawn to the fact that just like the previous issue, the fact of the loss of profit was pleaded and evidence adduced thereon. Our attention was equally drawn to the holding of the lower Court at pages 525-526 of the record to the effect that exhibit 4, the proforma evidence showed clearly the details of the transaction, it confirmed the contract, the quantity of the goods, the unit price as well as the total amount of the goods as signed by the manufacturers. The holding goes on to show that the cross-appellant lost the goods which were lying waste at the ports owing to the defendant’s denial of funds. The cross respondent faults the tendering of the documents, particularly exhibit 4, the proforma evidence. It is trite law that a document can be tendered during trial from the bar upon agreement by counsel and where the document is not disputed, and where the document is disputed tendered through a witness. See Mannir Abdullahi vs. FRN (2016) LPELR-40101 (SC) and Ogbunyiya vs. Okudo (1979) LPELR- SC 13/1979. Without any doubt, what I was able to discern from the record is that exhibit 4 was tendered by the PW1, the only issue therein pertains to the contents of the said exhibit 4. It cannot be said to have been dumped on the Court. What can be said however is that the holding of the lower Court that exhibit 4 the proforma invoice, which was for 30,000.00 units of the items to be supplied, does not tally with exhibits 1 and 2, the contract documents. In other words, it cannot be correct if the calculation by the cross-appellant amounting to the sums of over N157 Million Naira founded on exhibit 1 and 2, the contract documents is founded on exhibit 4. That being the case, the argument that there was enough uncontradicted evidence establishing the entitlement of the cross-appellant to the sums claimed cannot equally be sustained. For instance, there has to be evidence of the gross profit expected, the expenditure in executing the contract, tax payable and lastly the net profit expected from the transaction on which the act of the cross respondent denied the accrual of the net profit. This the cross-appellant failed to plead and to adduce evidence upon. The evidence on record is not of such quality convincing the Court to award the sums claimed.
However, nominal damages may be awarded by the trial Court where the fact of the loss of profit is on the work he was prevented from doing by the act of the defendant is shown, but the necessary evidence as to the amount is not given. See ACME Builders Ltd vs. Kaduna State Water Board (1999) LPELR- 65 SC. In such a situation, that exercise of discretion by the trial Judge awarding the sums awarded is not ordinarily interfered with. See Obodo vs. Ogba (1987) 2 NWLR (pt. 54) 1, Okafor vs. Idigo (1984) 1 SCNLR 48.
In any event, the cross-appellant had a duty to mitigate his loss, and cannot be heard to say that because the cross respondent failed to release his money standing at a little over N78 Million Naira, he allowed his goods to spoil at the ports, in view of the profit he must have made in the contract already executed by his own showing. See Uwa Printers Nig. Ltd vs. Inv. Trust Co. Ltd (1988) (pt. 111) NSCC 195 AT 211. All I am saying is that the cross-appellant having failed to satisfy the Court as demanded by law awarding the sums of over N159 Million Naira as anticipated profit, and instead awarding the nominal sum of N25 Million Naira cannot be disturbed by this Court, and the cross-appeal on same is without merit and the issue resolved against the cross-appellant.
ISSUE THREE.
Whether the trial Court was right when it ordered that the cross respondent is to pay the cross-appellant interest on the sum at the prevailing government rate from the date of judgment till final liquidation rather than and instead of interest at the rate of 20% per annum as prescribed by Order 37 Rule 4 of the High Court of the FCT (Civil Procedure) Rules 2018.
The learned counsel for the appellant submits that even though it had prayed for the grant of 10% P.A interest on the judgment sum until the judgment debt is liquidated, referred to Order 39 Rule 4 of the High Court of the FCT Civil Procedure Rules 2018 which made provision for 10% post interest rate. Learned counsel then argued that if the Court was not inclined in awarding 20% being what the commercial banks were charging, it ought to have granted the 10% stipulated in the rules as against the order made which was not clear. He prayed the Court to order for the award of 10% post interest as prayed by the cross-appellant.
Contrariwise, the learned counsel for the respondent holds firmly to the view that the cross-appellant having failed to prove his case is not entitled to the award. Having resolved issues one and two in favor of the cross-appellant, the contention that the cross-appellant is entitled to 10% interest per annum as provided by the rules of the trial Court is apt and the issue resolved in favor of the cross-appellant.
ISSUE FOUR.
Whether the award by the trial Court of only the sum of N5 Million as general damages against the cross respondent was not manifestly too low on the standard of reasonableness.
It was contended by the learned counsel for the cross-appellant that from the circumstance of the case, the award of N5 Million Naira though discretionary was on the low side and thereby urged the Court relying on UBA Plc vs. Ogochukwu (2014) LPELR-24267 (CA) to intervene and resolve the issue in favor of the cross-appellant.
For the respondent, it was argued that the award made for N5 Million Naira amounted to double compensation and cited the case of Oando Nig. Plc vs. Adijere (W/A) Ltd (2013) 15 NWLR (pt. 1377) 374 for support. The case cited is to the effect that:
“An award of general damages after the award for special damages invariably equates to double compensation the law frowns at same. It should not be allowed under normal circumstances”
I am thereby convinced by the learned counsel for the cross respondent that the trial Court having awarded the sum of N25 Million Naira special damages to the cross Appellant, a further award of N5 Million Naira would amount to, and did amount to double compensation, and this cannot be allowed by law. The concomitant effect is that the award of N5 Million Naira is an award made in error and it is hereby vacated.
In the event the cross-appeal succeeds in part. I make no order on costs.
PETER OLABISI IGE, J.C.A.: I have had the privilege of reading the leading judgment just delivered by my learned brother BARKA, JCA.
I agree with the reasoning and conclusion of my Noble Lord. I adopt them as mine.
There shall be no order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, HAMMA AKAWU BARKA, JCA.
I agree with the reasoning and adopt the conclusion therein as mine.
I abide by all the consequential orders.
Appearances:
G. Ofadile Okafor (SAN), with him, I. J. Michel For Appellant(s)
C. Ezeokuora, with him, V. C. Igbegwu For Respondent(s)
