UNION BANK OF NIGERIA PLC V RAVIH ABDUL & CO. LIMITED
(2018) LCN/4576(SC)
In the Supreme Court of Nigeria
Friday, December 14, 2018
Case Number: SC.314/2013
JUSTICES
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
PAUL ADAMU GALUMJE Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
UNION BANK OF NIGERIA PLC Appellant(s)
AND
RAVIH ABDUL & CO. LIMITED Respondent(s)
RATIO
ON WHOM RESTS THE BURDEN OF PROOF IN CIVIL PROCEEDINGS
The law is that the burden of proof is on the party who would lose if no evidence were adduced. Generally, in civil proceedings the burden of proof though said not to be static, it is on the vulnerable party to lead credible evidence in proof to the contrary. SEE ADEGOKE VS ADIBI (Supra), ONWUAMA VS EZEOKOLI (Supra), OYOVBIARE VS OMAMURHOMU (Supra) and IKE VS UGBOAJA (Supra). See also ONOBRUCHERE VS ESEGINE (1986) 1 NWLR (Pt.19) 799; OJOMO VS DEN (1987) 4 NWLR (Pt. 64) 216; ABIODUN VS ADEHIN (1962) 2 SCNLR 305; REYNOLDS CONSTRUCTION CO. LTD. VS OKWEJIMINOR (2001) 15 NWLR (Pt.735) 87. PER SIDI DAUDA BAGE, J.S.C.
ATTITUDE OF THE COURT TO TECHNICALITIES
It is a failed attempt at deploying technicalities to defeat justice. Technicalities can no longer defeat justice particularly where the facts and evidence coalesced in favour of the Appellant, as in this case. The Appellant’s contention is sound in law and logic to the extent that an appellate Court will always lean in favour of doing substantial justice in a case rather than hanging on technicality. See ATANDA VS AJANI (1989) 3 NWLR (Pt.111) 511, NNEJI VS CHUKWU (1988) 3 NWLR (Pt.810) at 184. The above is informed by seemingly settled position that it is no longer fashionable to decide cases solely on technicalities as the Courts have deliberately shifted away from narrow technical approach in favour substantial justice. See MAKERI SMELTING CO. LTD. VS. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 447 at 476-477. The attitude of the Courts now is that cases should always be decided, wherever possible on merit to the extent that blunders, like in the instant appeal where typographical errors of stating letter of credit “No. SF/95/60437” is an issue against the obvious fact and evidence that, in reality, the parties are aware that their letter of credit had reference Number SF/93/60437. This is one instance where technicalities must, and should give way to substantial justice. See also AJAKAIYE VS IDEHIA (1994) 8 NWLR (Pt.364) 504, ARTRA IND. LTD VS NBCI (1997) 1 NWLR (Pt.483) 574, DAKAT VS. DASHE (1997) 12 NWLR (Pt.531) 46, BENSON VS NIGERIA AGIP CO. LTD (1982) 5 S.C 1. ADEKEYE VS AKIN-OLUGBADE (1987) 3 NWLR Pt.60, at 214. PER SIDI DAUDA BAGE, J.S.C.
GUIDING PRINCIPLES IN DETERMINING WHETHER OR NOT GROUNDS OF APPEAL ARE OF MIXED LAW AND FACT OR BOTH
The position calls for the determination of whether or not the said grounds 2, 3 and 4 are of law or mixed law and fact or both and in doing this a recourse to the guiding principles well enunciated by this Court shall be done. Specifically, in the case of Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745 the Supreme Court stated thus: – “(1) It is an error in law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors; See O’ KELLY v TRUSTHOUSE FORTE PLC (1983) 3 ALL E.R. 456 AT P.468. (2) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inference drawn there from are grounds of law; See OGBECHIE v ONOCHIE (supra) AT PP. 419-492. (3) where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts; See EDWARDS v BAIRSTOW (supra) P. 55; H. L. For, for many years, it has been recognized that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellate court is as competent as the Court of trial; See BENMAX v AUSTIN MOTOR CO. LTD. (1955) 1 ALL E. R. 326 AT P. 327. (4) Where a tribunal states the law on a point wrongly, it commits an error in law. (5) Where the complaint is, that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury”. PER MARY UKAEGO PETER-ODILI, J.S.C.
SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Lagos division delivered on the 18th February, 2013 wherein the lower Court allowed the appeal and granted all the reliefs sought by in the Respondent’s Amended Statement of Claim. Being dissatisfied with the Judgement of the lower Court, the Appellant appealed to this Court vide a Notice of Appeal dated 19th April 2013 as contained in pages 440-443 of the Record of Appeal.
The Appellant’s appeal is hinged on three grounds. Ground one alleges that the lower Court erred in law when it held that the Appellant was in breach of the letter of credit without giving effect to Exhibits D2, D2A, and D2B all which clearly established that payment was made in respect of the only letter of credit SF/93/60437 opened in the transaction.Ground two alleges error of law to the extent that the lower Court held that Exhibits D2, D2A, and D2B related to payments purportedly made in respect of different letter of credit. The third ground related to error of law by the lower Court when it held that the reliefs sought and proved by
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the Respondents at trial Court inclusive of damages are granted.
SUMMARY OF FACTS:
On the 26th April, 1993, the Respondent applied to the Appellant for an irrevocable Letter of Credit in the total sum 5,240.36 in favour of Vertika International Ltd, Cheshire UK. The Letter of credit No. SF/93/60437 was opened by the Appellant on the request of the Respondent, which was to expire on the 12th August, 1993. At the request of the Respondent, validity period of the Letter of Credit was extended to 31st day of October 1993. On the 30th September, 1993, the original shipping document of the goods supplied by the beneficiary (Vertika International Ltd) was delivered by the Respondent to the Appellant who was to forward same to the correspondent bank, Barclays Bank UK for payment to the beneficiary.
The Appellant acknowledged receipt of the shipping documents, stamped and forwarded same to the corresponding bank. The Appellant gave a Certified True Copy (CTC) of the shipping (Exhibit P11) to the Respondent to clear the goods supplied on the condition that the Appellant will forward the original shipping documents as
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agreed to the corresponding bank (Barclays Bank, UK) for payment to the beneficiary.
The Appellant is alleged to have traded with the Respondent’s foreign exchange, failed or refused to forward the shipping documents to the corresponding bank to enable it pay the value of the Letter of Credit to the beneficiary as a result of which no payment was made to the beneficiary (Vertika International Ltd) during the lifetime of the letter of credit and thereafter.
In delivering its judgement on 18/2/2013 the Court of Appeal in a split decision allowed the appeal and granted the reliefs sought by the Respondent herein as contained at pages 409-439 of the Record of Appeal. The appellant herein being dissatisfied with the said Judgement filed a Notice of Appeal to this Court (Pages 440-443 of the Record).
ISSUES FOR DETERMINATION:
The Appellant formulated four (4) issues for determination at page 4 of the Appellant Brief of Argument, thus:
“(1) Whether Vertika International Ltd has paid the sum of 5,240.36 pounds being the value of the confirmed irrevocable letter of credit No. SF/93/60437 opened in its favour having regard to Exhibits D2, D2A,
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and D3B and if answer is in the affirmative, whether the Appellant is in breach of the terms of the letter of credit (Ground 1)
2) Whether or not Exhibits D2, D2A, and D3B relate to another letter of credit No. SF/95/60437 other than letter of credit no. SF/93/60437 in which the transaction involving the beneficiary known as Vertika International Ltd, the Appellant, the Respondent and Barclays Bank of England was based on (Ground 2).
3) Whether or not Exhibits P10, P16 and P17 are in conflict with Exhibits D2, D2A, and D3B all of which were placed before the trial Court (Ground 3).
4) Whether the reliefs sought by the Respondent as per the amended Statement of Claim dated 24th September, 2003 were proved to warrant the granting of same by the Court of Appeal (Ground 4).”
On its part, the Respondent also formulated two issues for determination at paragraph 4.0 (1-2) of its Respondents Brief dated and filed 2nd December, 2013, thus:
“1) Whether the Court of Appeal was right in holding that the Appellant was in breach of the terms of the Letter of Credit no. SF/93/60437 by reason of the
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Appellants failure to pay the beneficiary of the Letter of Credit (Grounds 1, 2 and 3 of the Notice of appeal).
2) Whether the Court of Appeal was right in holding that the Appellant was liable to the Respondent in damages and in granting the prayers sought (Ground 4 of the Notice of Appeal).”
The issues formulated by the parties are similar in substance to the extent that the questions for determination seek to unravel if there has been a breach of the terms of Letter of credit SF/93/60437 based on the totality of the evidence before the trial Court to occasion the award of damages awarded in favour of the Respondent against the Appellant. I have put the issue in con for the purpose of determination of this appeal, thus:
“Whether the Appellant was in breach of the terms of the Letter of Credit No. SF/93/60437 having regard to Exhibits D2, D2A, and D3B to entitle the Respondent to the relief sought for damages for breach.”
CONSIDERATION OF ARGUMENTS AND RESOLUTION OF ISSUE:
The main contention of the Appellant is that the beneficiary has been paid the sum of 5,240.36 being the value of the letter of credit. In proof of the assertion, the
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Appellant tendered Exhibit D2 dated 16th May 1997 from Barclays Bank, London. The Appellant also stressed that, to show proof of payment, it tendered Exhibit D2A which confirms payment to Vertika. Exhibit D, the Appellant further contends, shows that the beneficiary ‘has definitely received the proceeds under the letter of credit’.
The Appellant contends that by virtue of Exhibits D2, D2A and D2B, it has been shown clearly that the beneficiary, Vertika International Limited did receive the sum of 5,240.36 from Barclays Bank, being the value of the letter of credit No. SF/93/60437 contrary to the claim of the Respondent. The Appellant submits that the burden of proving a particular fact is on the party who asserts it and the onus shifts from side to side where necessary by adducing further evidence. The Appellant cited Sections 135 to 137 of the Evidence Act, now Section 131 to 133 of the Evidence Act 2011 and the cases of ADEGOKE VS ADIBI (1992) 5 NWLR (Pt.242) 410, AGU VS NNAJI (2003) FWLR (Pt.139) 1537, ONWUAMA VS EZEOKOLI (2002) 5 NWLR (Pt.760) 353, OYOVBIARE VS OMAMURHOMU (2001) FWLR (Pt.68) 1129 and IKE VS UGBOAJA (1993) 6 NWLR (Pt.301) 539.
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The Appellant contended that by tendering Exhibits D2, D2A and D2B in evidence, the burden of proof shifted to the Respondent to disprove that position. The Appellant contended further that, contrary to the position of the lower Court, the Respondent and the Beneficiary, Vertika International Ltd were in breach of duty to present relevant documents to Barclays Bank London as required, which failure made the Appellant to write the Respondent on 8th July 1994 as contained in Exhibit D4. The Appellant contended further, as contained at page 239 of the Record of Appeal that the beneficiary is to be blamed for non-presentation of documents to the advising bank and direct shipping of goods to Claimant on its instructions.
The Appellant further contended while arguing its issues two and three that the lower Court was of the erroneous view that the payment of the sum of 5,240.36 to Vertika International Limited was effected in respect of letter of credit no. SF/95/60437 and not on the letter of credit which had reference Number SF/93/60437. The Appellant submitted that there is only one letter of credit in the entire transaction
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involving the Beneficiary known as Vertika International Ltd, the Appellant, the Appellant and Barclays Bank of England and the letter of credit is SF/93/60437 (and no other).
The Appellant further submitted that there was only one transaction for letter of credit covering the sum of 5,240.36 and the reference number MRDC 4059160 has remained constant and regular. The Appellant cited the case of UBN PLC VS SPARKLING BREWERIES LTD. (1997) 5 NWLR (Pt.505) Page 344 at 353, Para. A-B; and AKINSANYA VS UBA LTD. (1986) 4 NWLR (Pt.35) at 273. The Appellant contended that the SF/95/60437 on Exhibit D2 and D4 as against SF/93/60437 was merely a typographical error as there was only one letter of credit in the entire transaction, and to hold otherwise is to hang on technicality. The Appellant submitted that an appellate Court will always lean in favour of doing substantial justice in a case rather than hanging on technicality, citing the case of ATANDA VS AJANI (1989) 3 NWLR (Pt.111) 511, NNEJI VS CHUKWU (1988) 3 NWLR (Pt.810) at 184.
The Appellant contended that having established payment to the Beneficiary Vertika international Ltd through Exhibits D2,
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D2A and D2B, the burden now shifts on the Respondent to prove the contrary, and cited the case of ONUH VS IDU (2002) FWLR (Pt.94) 66 at 79-80, to justify this position. The Appellant contended that having shown that Vertika International Ltd has been paid 5,240.36 the value of the letter of credit in the argument canvassed above, a consideration of the other claims by the Respondent becomes unnecessary because all other claims for damages were anchored and tied down to the fact of perceived non- payment of Vertika International Ltd. In view of the foregoing, the Appellant urged this Court to uphold this appeal, set aside the judgement of the lower Court and restore the judgement of the trial Court.
On its part, the Respondent submitted that parties and Courts are bound by the pleadings and are not expected or allowed to embark on a wild goose chase, as evidence a variance with pleadings goes to no issue. The Respondent cited the case of OHOCHUKWU VS ATTORNEY-GENERAL RIVERS STATE (2012) All FWLR (Pt.626), 412 at 432 Paras. B-C and ADEKEYE VS ADESINA (2011) All FWLR (Pt.571, 1509 at 1526 per Onnoghen, JSC (as he then was).
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The Respondent argued that Exhibits D2, D2A and D2B have no relationship with the letter of credit pleaded as No. SF/93/60437 in respect of which issues were joined and evidence led at the trial. The Respondent contended that payment said to have been made to the beneficiary in September 1994 as shown in Exhibit D2 are in conflict with letters written by the Appellant to the Respondent in Exhibits P 10 dated 27th July 1995. This is because Exhibits P16 and P17 of 28th January 1997 and 29th January 1997 respectively demonstrated that payments have not been made as at the days of writing those exhibits.
The Respondent contended that aside from the pitfalls of Exhibits D2, D2A and D2B as having different letter of credit numbers, those Exhibits are secondary evidence in respect of which no foundation were laid for their admissibility. On this contention, the Respondent cited the case of ONOCHIE VS ODOGWU (2006) All FWLR (Pt.317) Page 544 at 564-565 Para H-A.
On damages, the Respondent contended that special damages may be proved where the party claiming it gives evidence to support same and which evidence is unchallenged or uncontested. On this contention, the
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Respondent cited the case of ARABAMBI VS NIDB LIMITED (2006) All FWLR (Pt.295), Page 581 at 609. The Respondent further contended that the essence of special damages is to compensate for the loss sustained, and that once a breach of contract is established, damages must flow with a view to restoring the party affected to the position he would have been if there had been no breach of contract. The Respondent cited the case of CAMEROON AIRLINES VS OTUTUIZU (2011) All FWLR (Pt.570), Page 1260. The Respondent submitted that the Respondent is entitled to the reliefs being sought in the appeal. In sum, the Respondent urged the Court to sustain the judgement of the lower Court.
As hinted above, the sole issue cognisable for the purpose of determining this appeal is:
“Whether the Appellant was in breach of the terms of the Letter of Credit No. SF/93/60437 having regard to Exhibits D2, D2A, and D3B to entitle the Respondent to the relief sought for damages for breach.”
In resolving the issue, I’ll pay particular attention to the evidence before the trial Court. This becomes imperative as the point of divergence is whether or not Vertika International
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Limited has been paid the sum of 5,240.36 being the value of the letter of credit in issue at the material time. Exhibit D2 was tendered by the Appellant which is a confirmation from the Barclays Bank London, which reads thus:
“Thank you for your letter dated 5th May, 1997, the content of which have been passed to our controversing office for their comments. At the moment, we are only able to confirm that the beneficiary has definitely received the proceeds under the letter of credit of September, 1994 (Emphasis added).”
Exhibit D2A dated 9th May 1997 also corroborated the position on the receipt of payment, thus:
Ref MRDC 405 9160
Dear Sir,
We confirm that we have received all funds under the above reference
Many thanks.
The contention of the Respondent that by Exhibits P8, P10, P16 and P17 Vertika International Ltd had not received value for the letter of credit is, in my considered view, misplaced in view of overwhelming evidence of the content of Exhibits D2, D2A, D2B and D3. These have not been debunked or sufficiently controverted by the Respondent. More compelling
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is Exhibit D2B which is a letter from the Beneficiary (Vertika International Limited) to the corresponding Bank (Barclays Bank, England) dated 9th May 1997 confirming receipt of all funds. The attempt of the Respondent to controvert the content of Exhibits D2 and D2B by Exhibit P8 would appear feeble and rather ludicrous. This is because Exhibit 8 is a statement of account from Vertika International which does not invalidate the content of Exhibits D2, D2A, D2B and D3. Much more compelling is Exhibit D2B from the Vertika International Ltd itself, which in clear terms, acknowledged receipt of value on the letter of credit.
The only reasonable conclusion to be drawn, unless otherwise controverted by equally credible, direct evidence, is that Vertika International Limited has been paid the sum of 5,240.36 pounds being value for the letter of credit. The Respondent has the option of shifting the burden of proof by adducing cogent, concrete and credible evidence to contradict the content Exhibits D2, D2A, D2B and D3. This is because in civil suits, unlike criminal cases, the burden of proofs keeps oscillating among the parties. The Evidence Act 2011 says it all in Sections 131-134.
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For the purpose of burden of proof in civil suit, the Act states thus:
131. BURDEN OF PROOF.
“(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
132. ON WHOM BURDEN OF PROOF LIES.
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
133. BURDEN OF PROOF IN CIVIL CASES.
“(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were
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adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”
134. Standard of proof in civil cases. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”
The burden of proof placed on the Appellant would appear discharged if considered against the backdrop of the veracity of the content of Exhibits D2, D2A, D2B and D3. The Respondent needed to have done much more than it did to show that indeed, the Appellant breached the contract of the letter of credit by failure to pay the beneficiary (Vertika International Limited) despite the later having confirmed payment on the same letter of credit. For the contention of non-payment of the Respondent to avail, a statement from the Beneficiary or the corresponding Bank, like Exhibits D2, D2A, and D2B would have swayed the balance of probabilities in favour of the Respondent.
The law is that the burden of proof is on the party who would lose if no evidence were adduced. Generally, in civil
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proceedings the burden of proof though said not to be static, it is on the vulnerable party to lead credible evidence in proof to the contrary. SEE ADEGOKE VS ADIBI (Supra), ONWUAMA VS EZEOKOLI (Supra), OYOVBIARE VS OMAMURHOMU (Supra) and IKE VS UGBOAJA (Supra). See also ONOBRUCHERE VS ESEGINE (1986) 1 NWLR (Pt.19) 799; OJOMO VS DEN (1987) 4 NWLR (Pt. 64) 216; ABIODUN VS ADEHIN (1962) 2 SCNLR 305; REYNOLDS CONSTRUCTION CO. LTD. VS OKWEJIMINOR (2001) 15 NWLR (Pt.735) 87.
The onus and burden of proof lie on the Respondent in this suit. Regrettably, the Respondent has done little to discharge the burden. We must apply law as it is. The effect of failure to discharge the onus of proof in civil cases rests squarely on the plaintiff. This was correctly applied in the Judgement of the trial Court at pages 314-337 of the Record of Appeal as well as in the minority judgement of Adamu Jauro JCA at pages 432-438 of the Records of Appeal.
I agree with the contention of the Appellant that the lower Court misdirected itself when it held that the payment of the sum of 5,240.36 to Vertika international Limited was effected in respect of letter of credit No. SF/95/60437 and
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not on the letter of credit which had reference Number SF/93/60437. This is because, to all intent and purposes, there is only one letter of credit involving the Beneficiary known as Vertika International Ltd, the Appellant, the Respondent and Barclays Bank of England and the letter of credit is SF/93/60437 (and no other). The reference number MRDC 4059160 also has remained constant and regular which further shows that the parties are clear as to the actual letter of credit, which is reference Number SF/93/60437.
The contention of the Respondent that letter of credit Reference SF/95/60437 is different from SF/93/60437 for the purpose of denying payment, which have been acknowledged by corresponding bank and beneficiary, is to say the least, misplaced. It is a failed attempt at deploying technicalities to defeat justice. Technicalities can no longer defeat justice particularly where the facts and evidence coalesced in favour of the Appellant, as in this case. The Appellant’s contention is sound in law and logic to the extent that an appellate Court will always lean in favour of doing substantial justice in a case rather than hanging on technicality.
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See ATANDA VS AJANI (1989) 3 NWLR (Pt.111) 511, NNEJI VS CHUKWU (1988) 3 NWLR (Pt.810) at 184.
The above is informed by seemingly settled position that it is no longer fashionable to decide cases solely on technicalities as the Courts have deliberately shifted away from narrow technical approach in favour substantial justice. See MAKERI SMELTING CO. LTD. VS. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 447 at 476-477. The attitude of the Courts now is that cases should always be decided, wherever possible on merit to the extent that blunders, like in the instant appeal where typographical errors of stating letter of credit “No. SF/95/60437” is an issue against the obvious fact and evidence that, in reality, the parties are aware that their letter of credit had reference Number SF/93/60437. This is one instance where technicalities must, and should give way to substantial justice. See also
AJAKAIYE VS IDEHIA (1994) 8 NWLR (Pt.364) 504, ARTRA IND. LTD VS NBCI (1997) 1 NWLR (Pt.483) 574, DAKAT VS. DASHE (1997) 12 NWLR (Pt.531) 46, BENSON VS NIGERIA AGIP CO. LTD (1982) 5 S.C 1. ADEKEYE VS AKIN-OLUGBADE (1987) 3 NWLR Pt.60, at 214.
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In concluding, having satisfactorily established payment to the Beneficiary Vertika International Ltd through Exhibits D2, D2A and D2B, the burden now shifted to the Respondent to prove the contrary. Similarly, having shown that Vertika International Ltd has been paid the sum of 5,240.36, being the value of the letter of credit, the necessary conclusion to be made is that the Appellant has breached no contract to warrant the award of the damages and other claims in favour of the Respondent, as those claims for damages were anchored and tied down to the fact of perceived non-payment of Vertika International Ltd.
In view of the foregoing, the sole issue formulated above in this appeal is resolved in favour of the Appellant. This appeal is hereby upheld. The judgement of the Court below is hereby set aside and the judgement of the trial Court dated 23rd February 2007 is consequently restored.
I make no order as to cost.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother Bage JSC.
I agree with it. The judgment of the Court of Appeal is set aside while the judgment of the trial Court is restored.
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MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Sidi Dauda Bage JSC and to register the support I have for the reasonings from which the decision emanated I shall make some remarks.
This is an appeal against the majority decision of the Court of Appeal or Court below or lower Court of the Lagos Division, Coram; Adamu Jauro, Rita Nosakhare Pemu and Fatima Omoro Akinbami JJCA which majority decision allowed the appeal of the respondent granting all the reliefs sought in the Amended Statement of claim.
The facts are well set out in the leading judgment and I shall not repeat them save for when the occasion demands a reference to any part thereof.
The hearing was on the 9th day of October, 2018 at which learned counsel for the appellant Johnson Odionu Esq adopted the brief of argument of the appellant filed on 13th of September 2013 and a Reply Brief of argument filed on 5th September, 2014 and deemed filed on 4th February 2015. In the brief of argument were raised four issues for determination which are as follows:
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(1) Whether Vertika International Ltd has been paid the sum of 5,240.36 pounds sterling being the value of the confirmed irrevocable letter of credit No: SF/93/60437 opened in its favour having regard to Exhibit D2, D2A and D2B and if the answer is in the affirmative, whether the appellant is liable to breach of the terms of the letter of credit. This issue relates to Ground One.
(2) Whether or not Exhibits D2, D2A and D2B relate to another letter of credit No: SF/95/60437 other than letter of credit No. SF/93/60437 in which the transaction involving the beneficiary known as Vertika International Ltd, the Appellant, the respondent and Barclays Bank of England was based on. This issue relates to Ground Two.
(3) Whether or not Exhibits P10, P16 and P17 are in conflict with Exhibits D2, D2A and D2B all of which were placed before the trial Vourt. This issue relates to Ground three.
(4) Whether the reliefs sought by the respondent as per the amended statement of claim dated 24th September, 2003 were proved to warrant the granting of same by the Court of Appeal. This issue relates to Ground Four.
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Learned counsel for the respondent, Prince Debo Oduguwa adopted the brief of argument of the respondent wherein he argued a Preliminary Objection which he urged the Court to uphold but in the event the Court was not so minded he raised two issues for determination, viz:-
1. Whether the Court of Appeal was right in holding that the appellant was in breach of the terms of letter of credit No. SF/93/60437 by reason of the beneficiary of the letter of credit. (Issue relates to Grounds 1, 2 and 3 of the grounds of appeal.)
2. Whether the Court of Appeal was right in holding that the appellant was liable to the respondent in damages and in granting the prayers sought. (This issue relates to Ground 4 of the grounds of appeal).
There is no gain saying that the Preliminary Objection would be first tackled before any further step as therein lies the competence of the appeal and the follow up jurisdiction of the Court.
PRELIMINARY OBJECTION
The Respondent’s objection is centered on the incompetence of the Notice of Appeal dated 19th April, 2013 on the ground that grounds 2, 3 and 4 are of mixed law and facts for which the leave of the Court below or the Supreme
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Court is required and the appellant failed to seek same. He referred to Section 233 (3) of the Constitution;Ogbechie v Onochie (1986) 2 NWLR (Pt.23) 484; Shanu v Afribank Nigeria Plc (2000) FWLR (Pt.23) page 1221 at 1231; Ononuju v Attorney General, Anambra State (2009) 10 FWLR (Pt.1148) page 182 etc.
That in view of the incompetent grounds 2,3,4 of the grounds of appeal the appellant would be left with ground 1 which questions the findings and conclusion of the Court below that the appellant was in breach of contract of the letter of credit No. SF/93/60437.
Learned counsel for the appellant in response contended that whether a ground of appeal as in this matter is one of law or mixed law and fact or both, it is necessary and desirable to sieve through the said grounds 2, 3 and 4 and their particulars guided by the guidelines as enunciated in the case of Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745 etc. That taking those guides in view the objection would fail.
The grouse of the respondent as embedded in the Preliminary Objection is that grounds 2, 3 and 4 of the grounds of appeal are either of facts or mixed law and facts
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and in the absence of leave either from the Court of Appeal or the Supreme Court, the validity is the impugned and the appeal therefore lacking in competence.
The said grounds of appeal including ground 1 to which there is no complaint are hereunder recaptured from pages 443-442 of the Record of Appeal as follows:-
GROUNDS OF APPEAL
(1) The learned justices of the Court of Appeal erred in law when they held that the appellant is in breach of contract of the letter of credit opened for the respondent and therefore liable in damages without giving effect to Exhibits D2, D2A and D2B all of which clearly and unequivoxibly established that payment was made in respect of the only letter of credit SF/93/60437 opened in transaction.
PARTICULARS OF ERROR
(i) The appellant established that Exhibits D2, D2A and D2B tendered in evidence at the trial Court clearly show that the beneficiary Vertika International Ltd received the sum of 5,240.36 being the value of the letter of credit No. SF/93/60437.
(ii) There is no single letter from Vertika International Ltd demanding payment of the value of the letter of credit.
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(iii) There is no clear, cogent credible and convincing evidence that the beneficiary Vertika was not paid.
(2) The learned justices of the Court of Appeal erred in law when they held that Exhibits D2, D2A and D2B related to payment purportedly made in respect of a different letter of credit.
PARTICULARS OF ERROR
(i) There is only one letter of credit in the entire transaction involving the beneficiary known as Vertika International Ltd, the appellant, the respondent and Barclays Bank of England and the letter of credit is SF/93/60437.
(ii) The appearance of SF/95/60437 on Exhibit D2 and D4 as against SF/93/60437 was merely a typographical error as there is only one letter of credit in the entire transaction with reference No. SF/93/60437.
(iii) The reference of SF/95/60437 which was a typographical error does not relate to any letter of credit opened in 1995 as the only letter of credit in the transaction SF/93/60437 was opened in 1993.
(iv) The lower Court did not consider the doctrine of regularity before reaching its decision.
(3) The learned justices of the Court of Appeal erred in law when they held that Exhibits P10, P16 and
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P17 are in conflict with Exhibits D2, D2A and D2B and that it is the duty of the appellant herein to resolve the contradictory evidence placed before the Court but the appellant herein failed to resolve same.
PARTICULARS OF ERROR
(i) The evidence before the trial Court does not show any conflict between Exhibits P10, P16 and P17 in one hand and Exhibits D2, D2A and D2B on the other hand.
(ii) Exhibits D2, D2A and D2B confirm that the beneficiary has received proceeds under the letter of credit. They confirm payment to Vertika and even alluded to confirmation of payment by Vertika itself.
(iii) Exhibits P10, P16 and P17 were written in complete ignorance and without the knowledge as can be seen in the Exhibits that the beneficiary – Vertika had received payment and confirmed same as evidence by Exhibits D2, D2A and D2B.
(iv) Exhibit D2, D2A and D23 were cogent, direct and positive from the beneficiary that payment in respect of the letter of credit has been paid while Exhibits P10, P16 and P17 were speculative and not positive or emanating from the beneficiary.
(v) The respondent herein being the claimant at the
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trial Court asserted that Vertika has not paid. The appellant as the defendant tendered credible evidence vide Exhibits D2, D2A and D2B that Vertika was paid. At this period the onus of proof had shifted to the respondent herein to discredit this piece of evidence but not on the appellant as decided by the Court of Appeal.
(4) The learned justices of the Court of Appeal erred in law when they held that the reliefs sought and proved by the respondents at the trial Court inclusive of damages are granted.
PARTICULARS OF ERROR
(i) The Respondent did not prove damages having regard to the exhibits before the trial Court.
(ii) The decision of the Court of Appeal is against the weight of evidence.
RELIEFS SOUGHT FROM THE SUPREME COURT
(a) The appeal be allowed.
(b) An order setting aside the judgment of the Court of Appeal and to uphold the judgment of the High Court of Lagos State.
The position calls for the determination of whether or not the said grounds 2, 3 and 4 are of law or mixed law and fact or both and in doing this a recourse to the guiding principles well enunciated by this Court shall be done. Specifically, in
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the case of Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745 the Supreme Court stated thus: –
“(1) It is an error in law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors; See O’ KELLY v TRUSTHOUSE FORTE PLC (1983) 3 ALL E.R. 456 AT P.468.
(2) Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases, and inference drawn there from are grounds of law; See OGBECHIE v ONOCHIE (supra) AT PP. 419-492.
(3) where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts; See EDWARDS v BAIRSTOW (supra) P. 55; H. L. For, for many years, it has been recognized that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellate court is as competent as the Court of trial; See BENMAX v AUSTIN MOTOR CO. LTD. (1955) 1 ALL E. R. 326 AT P. 327.
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(4) Where a tribunal states the law on a point wrongly, it commits an error in law.
(5) Where the complaint is, that there was no evidence or no admissible evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury”.
In the case in hand in ground 2, the appeal challenge has to do with the conclusions reached, interpretation of documents, words or phrases and interpretation of documents, words or phrases and inference drawn therefrom by the Court below on undisputed facts which clearly amount to ground of pure law. I rely on Nwadike v Ibekwe (supra); Ogbechie v Onochie (1986) 2 NWLR (Pt.23) 484; ACB Plc v Obimiami Brick and Stone Ltd (1993) 5 NWLR (Pt.294) 399 etc.
In respect to ground 3 that has to be question of the lower Court being misled to come to a conclusion that there was conflict of documents or evidence before the Court and it was the duty of the appellant to resolve the conflict which certainly is of law as there is no call for evaluation of the facts. Also in regard to ground 4 that has to do with
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the lower Court taking into account some wrong criteria in reaching its conclusion and also that Court applied some wrong standard of proof. For sure these are issues of law for which no leave is needed as they met the roadmap well set out in Nwadike v Ibekwe (supra); See also C. C. T. C. S. Ltd v Ekpo (2008) 6 NWLR (Pt.1083) page 362 at 374.
Indeed this Preliminary Objection has been a waste of the court’s time and assuming the grounds 2, 3 and 4 needed leave and the grounds incompetent, the surviving ground I would have been alone able to sustain the appeal. In this case anyway all the grounds are valid and competent being grounds of law and appeal therefrom are properly before the Court as of right. The objection fails and is dismissed.
To cover the field and convenience I shall make use of the issues as crafted by appellant.
ISSUES 1, 2 & 3
1. Whether Vertika International Ltd has been paid the sum of 5,240.36 pounds sterling being the value of the confirmed irrevocable letter of credit No. SF/93/60437 opened in its favour having regard to Exhibits D2, D2A and D2B and if the answer is in the affirmative,
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whether the appellant is liable to breach of the terms of the letter of credit.
2. Whether or not Exhibits D2, D2A and D2B relate to another letter of credit No. SF/95/60437 other than letter of credit No. SF/93/60437 in which the transaction involving the Beneficiary known as Vertika International Ltd, the appellant, the respondent and Barclays Bank of England was based on.
3. Whether or not Exhibits P10, P16 and P17 are in conflict with Exhibits D2, D2A and D2B all of which were placed before the Court.
Learned counsel for the appellant submits that Exhibits D2, D2A and D2B show that the beneficiary Vertika International Limited received the sum of 5,240.36 from Barclays Bank being the value of the letter of credit No. SF/93/60437 contrary to the claim of the respondent that it is trite law that the burden of proving a particular fact is on the party who asserts it and the onus does not remain static in civil cases as it vacillates between adverse parties, shifting from side to side where necessary and the onus of adducing further evidence is on the person who will fail if such evidence is not adduced. He cited Sections 135 to 137 of the
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Evidence Act now Section 131 to 133 of the Evidence Act 2011; Adegoke v Adibi (1992) 5 NWLR (Pt.242) 410; Agu v Nnaji (2003) FWLR (Pt.139) 1537; Onwuama v Ezeokoli (2002) 5 NWLR (Pt.760) 353; Oyovbiare v Omamurhomu (2001) FWLR (Pt.68) 1129; Ike v Ugboaja (1993) 6 NWLR (Pt.301) 539.
Mr. Odionu of counsel for the appellant contended that respondent is caught by Section 167 (d) of the Evidence Act 2011 as it could be presumed that the respondent knew or was satisfied that Vertika had been paid and that is why it did not go ahead to confront it with Exhibit D2B in particular. That the respondent and the beneficiary Vertika International Ltd were in breach of their duty to present relevant documents to Barclays Bank London as required as a result of which the appellant wrote to the respondent on 8th July, 1994 as per Exhibit D4 reminding the respondent of its duties under the letter of credit. He stated that to remedy the situation DW1 testified that the defendant bank sent a message to Barclays Bank London to accept late presentation of documents and pay the beneficiary. That Exhibit D dated 25th July 1994 with attachments is a fax
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message from Barclays London to the defendant acceding to the defendants request for late presentation of documents and that Vertika be paid.
Learned counsel for the appellant submitted that by virtue of Section 167 (C) of the Evidence Act 2011, a Court can presume regularity in respect of a document and the burden is on any person who challenges the regularity in respect of a document and the burden is on any person who challenges the regularity of the document to prove its irregularity. He cited Sokwo v Kpongbo (2003) 2 NWLR (Pt.803) 111 at 154.
That the appellant having established payment to the beneficiary Vertika through Exhibit D2, D2A and D2B, the burden now shifts on the respondent to the contrary. He cited Onuh v Idu (2002) FWLR (Pt.94) 66 at 79-80.
Responding, learned counsel for the respondent Prince Oduguwa contended that parties and the courts are bound by the pleadings and are expected or allowed to embark on a wild goose chase as evidence at variance with pleadings goes to no issue. He cited Ohochukwu v Attorney General Rivers State (2012) ALL FWLR (Pt.626) 412 at 432; Adekeye v Adesina (2011) ALL FWLR (Pt.571) 1509 at 1526.
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That it is only the respondent who could give life to the letter of credit by applying to extend the life of same and this fact was admitted by the only witness of the appellant who testified that upon the expiration of the letter of credit, it was for the claimant to write to them to extend it to write to them to extend it as it keeps the life going.
Prince Oduguwa of counsel for the respondent submitted that the appellant’s case had major internal conflicts such that no Court will ascribe probative value to such materially inconsistent evidence. He cited Ajide v Kelani (1985) 3 NWLR (Pt.12) 249 at 269.
Also stated by respondent’s counsel exhibits D2, D2A and D2B having different letters of credit, these exhibits are secondary evidence in respect of which no foundation was laid for their admissibility and such documents that cannot be relied upon in proof of any payment in respect of letter of credit No. SF/93/60437. He relied on Onochie v Odogwu (2006) ALL FWLR (Pt.317) page 544 at 564-565.
That it is trite law that the burden of proof is on a person that asserts and who will lose if no credible evidence is adduced.
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He cited Onuh v Idu (2002) FWLR (Pt.94) 66 at 79-80. The documentary evidence Exhibits D2, D2A and D2B showed clearly that the beneficiary, Vertika International Limited received the sum of 5,240.36 from Barclays Bank, being the value of the letter of credit No. SF/93/60437 contrary to the claim of the respondent therein. It is now settled law that the burden of proving a particular fact is on the party who asserts it, which onus does not remain static in civil cases but shifts between adverse parties from one side to the other as the occasion warrants and the onus of adducing further evidence is not adduced. Therefore when the appellant tendered Exhibits D2, D2A and D2B, the burden of proof moved to the respondent to dislodge it and that not happening it became admitted and it is taken as established. See Sections 135 to 137 of the Evidence Act now Sections 131 to 133 of the 2011 Evidence Act; Adegoke v Adibi (1992) 5 NWLR (Pt.242) 410; Agu v Nnaji (2003) FWLR (Pt.139) 1537; Onwuama v Ezeokoli (2002) 5 NWLR (Pt.760) 353; Oyovbiare v Omamurhomu (2001) FWLR (Pt. 68) 1129; Ike v Ugboaja (1993) 6 NWLR (Pt.301) 539.
The presumption that is thrown up is that the respondent
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being caught by Section 167 (d) of the Evidence Act 2011, to the extent that the respondent knew or was satisfied that Vertika had been paid and so had no need to go ahead to confront it.
Of note in the transaction is that there is only one letter of credit involving the beneficiary known as Vertika International Ltd, the appellant, the respondent and Barclays Bank of England and the letter of credit being SF/93/60437. As to the discrepancy with regard to the number, upon examination of Exhibits D2, D2A, D2A, D2A, D2B, D3 and D4 which is to the effect that there was only one transaction for letter of credit covering the sum of 5,240.36 pounds and the reference number MRDC 4059160 remained constant and or regular. In respect to the parties, they remained the same namely, the appellant, respondent, Vertika International Ltd and Barclays Bank of England (the Correspondent Bank). I place reliance on UBN Plc v Sparkling Breweries Ltd (1997) 5 NWLR (Pt.505) 344 at 353; Akinsanya v UBA Ltd (1986) 4 NWLR (Pt.35) 273.
From what can be discerned the reference number appearing as SF/95/60437 on Exhibit D2 and D4 as against SF/93/60437 can easily be explained as a
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typographical error since only one letter of credit existed in the entire transaction and the substantiality of justice would dictate leaning against the technicality which placing premium on that minor an error would produce. See Atanda v Ajani (1989) 3 NWLR (Pt.111) 511; Nneji v Chukwu (1988) 3 NWLR (Pt.81) 184; Section 167 (C) of the Evidence Act 2011; Sokwo v Kpongbo (2003) 2 NWLR (Pt.803) 111 at 154.
The appellant having established payment to the beneficiary Vertika through D2, D2A and D2B, the onus shifted on the respondent to dislodge what the appellant had established and that did not happen. See Onuh v Idu (2002) FWLR (Pt.94) 66 at 79-80.
The conclusion that I have reached from the foregoing is that the issues are resolved in favour of the appellant.
ISSUE FOUR
Whether the reliefs sought by the respondent as per the amended statement of claim dated 24th September, 2003 were proved to warrant the granting of same by the Court of Appeal.
Learned counsel for the appellant stated that the reliefs sought in Nos 2-13 of the statement of claim are ancillary or incidental reliefs while relief in No.1 of the Statement of
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Claim is the primary reliefs. He cited N.B.C.I v Kumbo Furniture Co. Nig Ltd (2004) 17 NWLR (Pt.903) 572.
That from the evidence before the trial Court, the cause of the delay in shipmen of the goods was partly due to the Beneficiary-Verika’s inability to present relevant documents to the advising bank-Barclays Bank of London for processing of payment which piece of evidence was not controverted or contradicted by the respondent. He relied on CBN v Igwillo (2007) 14 NWLR (Pt.1054) 406; Arewa iles Plc v Finetex Ltd (2003) 7 NWLR (Pt.819) 332.
That the respondent has not proved its case within the meaning of Section 131 of the Evidence Act 2011; UBA Plc v BTL Ind. Ltd (2006) 19 NWLR (Pt.1013) 61 at 145; X. S. (Nig) Ltd v Taisei (WA) Ltd (2006) 15 NWLR (Pt.1003) 533 at 552 etc.
That the instant case calls for the interference of the Supreme Court as the majority judgment and awards made are not borne out of the evidence or pleadings. He cited S. J. Maskin Fabric A/S v Olaogun Enterprises Ltd (1999) 14 NWLR (Pt.637) 128; Petgas Res Ltd v Mbanefo (2007) 6 NWLR (Pt.1031) 545 at 558-559; FBN PIL v Excel Plastic Ind. Ltd (2003) 13 NWLR (Pt.837) 412 at 456 etc.
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Learned counsel for the respondent submitted that the special damages they claimed were proved as required by law and so the trial Court in granting the reliefs sought. He cited Arabambi v NIDB Ltd (2006) ALL FWLR (Pt1295) 581 at 609; Cameroon Airlines v Otutuizu (2011) ALL FWLR (Pt.570) 1260 at 1282.
The issues 1, 2, & 3 haven been resolved in favour of the appellant, it follows that the award of pre-judgment interest against the appellant in the lower Court cannot be justified and so issue 4 which asked if the reliefs sought by the respondent as per the amended statement of claim were proved to warrant granting same is answered in the negative.
From the foregoing and the better articulated lead judgment, this appeal is meritorious and I allow it.
EJEMBI EKO, J.S.C.: I had the privilege of reading in draft the judgment just delivered in this appeal by my learned brother, SIDI DAUDA BAGE, JSC. I hereby adopt the summary of facts contained therein.
The Respondent complains that grounds 2, 3 & 4 in the Notice of Appeal are incompetent, and had prayed that they be struck out.
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I do not consider it necessary that any useful time should be spent on the preliminary objection. There is no complaint about ground 1 of the grounds of appeal. Issue 1 formulated from the said ground 1 can sustain the appeal, and that is the only issue I consider very material in this appeal. Thus the preliminary objection would appear academic, and I so hold.
On the merits: the question, the crux of the matter, is whether the Appellant was in breach of its contractual obligation to the Respondent in relation to the letters of credit No. SF/93/00437. It appears from the pleadings and the evidence that the Appellant had infact paid Vertika International Limited, the beneficiary of the letter of Credit No. SF/93/60437, the sum of 5,240.36 on a letter of credit No. SF/95/60437.
Exhibit D2 tendered by the Appellant is a confirmation by the Barclays Bank London. It states –
Thank you for your letter dated 5th May, 1997, the contents of which have been passed to our controversing office for their comments. At the moment, we are able to confirm that the beneficiary has definitely the proceeds of the letter of credit of September, 1993.
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This fact is further corroborated by Exhibit D2A of 9th May, 1997 that states:
Dear Sir,
We confirm that we have received all funds under the above reference.
Many thanks.
Exhibit D2A had reference No. Ref. MRDC4059160. Exhibits D2, D2A and D2B related to payments made in respect of letter of credit No. SF/95/60437. The breach of contract, the subject of this appeal, is in relation to letter of credit No. SF/93/00437. The contention of the Respondent is that the letters of credit Nos. SF/93/4037 and SF/95/4037 are different. For the Respondent to sustain this line of argument he must show two different transactions with two different letters of credit.
The Appellant was able to show that there was only one letter of credit wherein the beneficiary was Vertika International Limited. The reference No. MRDC4059160 remaining constant in respect of the transactions in relation to both letters of credit No. SF/93/00437 and SF/9560437 seems to suggest a typing human error which, in actuality, had not resulted in substantial miscarriage of justice to the Respondent. It will therefore appear that the Respondent’s
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insistence that the payments on letter of credit No. SF/95/60437, and not SF/93/60437, tantamounted to a breach of contract is nothing but an appeal to acne technicality. The constancy of the reference number Ref. 4059160 in all the correspondences and the fact, that between the parties herein there was only one transaction on letter of credit, reinforces my stance that this appeal deserves to be allowed, and it is accordingly allowed. Accordingly, I endorse in the judgment just delivered by my learned brother, SIDI DAUDA BAGE, JSC.
The judgment of the Lower Court is hereby set aside, while the judgment of the trial Court delivered on 23rd February, 2007 is hereby restored. Parties shall bear their respective costs.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother, Sidi Dauda Bage, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat.
Learned Counsel for the Respondent issued a notice of preliminary objection to the competence of the 2nd, 3rd and 4th grounds of appeal which he said were grounds of facts or
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mixed Law and facts for which no leave was obtained. Order 2 Rule 9 (1) of the Supreme Court Rules 2014 (as amended) under which the notice of preliminary objection was issued provides as follows: –
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with ten copies thereof with the Registrar within the same time” (under lining is mine).
Although by arguing the preliminary objection in the brief, notice of more than three clear days has been given to the appellant, the preliminary objection is not against the hearing of the appeal as provided for by the Rules of this Court, but to the competence of the 2nd, 3rd and 4th grounds of appeal. It means even if the three grounds are struck out, the appeal can still be heard. The preliminary objection contemplated by Order 2 Rule 9(1) of the rules of this Court is the one that will terminate the appeal in limine. The notice of preliminary objection is therefore incompetent and it is struck out.
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My Learned brother, Sidi Dauda Bage has resolved all the issues submitted for determination of this appeal. There was only one irrevocable letter of credit in favour of Vertika International Ltd in the sum of 5,240.36 with credit No. SF/93/60437 which was opened by the Appellant in 1993. There is proof through Exhibit D2, that vertika International Ltd, Cheshire UK in favour of whom the letter of credit was opened had received the sum as reflected on the letter. The Appellant clearly did not breach the terms of contract with the Respondent. The claim for damages are hinged on the claim for 5,240.36. With the collapse of the main claim, all other claim must collapse as well.
With these few words and the more elaborate reasoning in the Lead Judgment, which I adopt as mine, this appeal shall be and it is allowed. The judgment of the lower Court is hereby set aside. The judgment of the trial Court is accordingly restored. The cost of prosecuting this appeal is assessed at N500,000 in favour of the Appellant and against the Respondent.
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Appearances:
- ODIONU For Appellant(s)
Prince D. Oduguwa with him, A. Arowulajo and D. Leoke For Respondent(s)
Appearances
- ODIONU For Appellant
AND
Prince D. Oduguwa with him, A. Arowulajo and D. Leoke For Respondent
