ZENITH BANK v. VIN CHINNY (NIG) LTD (2022)

ZENITH BANK v. VIN CHINNY (NIG) LTD

(2022)LCN/16667(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, August 02, 2022

CA/L/310/2016

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

ZENITH BANK PLC APPELANT(S)

And

VIN CHINNY NIGERIA LIMITED RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt.1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. I will obey this legal commandment so as not to insult the law. PER OGBUINYA, JC.A.

WHETHER OR NOT A CLAIMANT’S STATMENT OF CLAIM DETERMINES THE JURISDICTION OF A COURT

To begin with, relief, which is usually domiciled in the twilight of the appropriate process, summons or statement of claim or petition, occupies a kingly position in adjudication. Every statement of claim, which usually supercedes a writ of summons, terminates with a prayer/relief. Hence, its absence in the right process renders it incompetent and submissive to penalty of striking out, see Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275.
There is no gainsaying the fact that relief, inter alia, is one of the determinants of jurisdiction of Court. In other words, relief is one of the barometer which a Court uses in measuring the presence or absence of jurisdiction over an action, see Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114; PDP v. Oranezi (2018) 7 NWLR (Pt. 1618) 245; Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394; Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Dec Oil & Gas Ltd. v. Shell (Nig.) Gas Ltd. (2019) 14 NWLR (Pt. 1692) 273. PER OGBUINYA, JC.A.

WHETHER OR NOT THE COURT CAN GRANT RELEIFS NOT CLAIMED BY PARTIES

It is an elementary law, known for its antiquity, that a Court of law is drained of the jurisdiction to grant a relief that is not claimed by a party to a suit, see Ochonma v. Unosi (1965) NMLR 321; Agu v. Odofin (1992) 3 SCNJ 161; Agbi v. Ogbe (2006) 11 NWLR (Pt. 990) 65; Eagle Super Pack (Nig.) Ltd. v. ACB Plc. (2006) 19 NWLR (Pt. 1013) 20; Odunze v. Nwosu (2007) 13 NWLR (pt. 1050) 1; Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 13 NWLR (Pt. 1105) 486; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81; Oduwole v. West (2010) 10 NWLR (Pt. 1203) 598; Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Unijos v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 547; Al-Hassan v. Ishaku (2016) 10 NWLR (pt. 1520) 230. The rationale behind this ageless principle of law is not far-fetched. A Court of law is not clothed with the garment of a philanthropist that dishes out awards that are not solicited by recipients. For a Court to make an order which no party has supplicated for and which the parties were not heard constitutes a gross infraction of the other party’s inviolable constitutional right to fair hearing as enshrined in Section 36(1) of the Constitution, as amended, the fons et origo of our laws, see Umukoro Usikaro v. Itsekiri Communal Land Trustees (1991) 12 SCNJ 75 at 91/(1991) 2 NWLR (Pt. 172) 150; Kalejaiye v. LPDC (2019) 8 NWLR (Pt. 1674) 365. PER OGBUINYA, JC.A.

THE MEANING OF THE TERM “NULLITY”

Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; Isah v. INEC (2016)18 NWLR (Pt. 1544) 175.

In the eyes of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (Pt.1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The dire consequence of a nullity is dismal. If a decision or an order is smeared with nullity, it is void and taken as if it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Furthermore, such a decision or an order, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party, see Ajibola v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265.

THE POSITION OF LAW ON NEGLIGENCE

It is apropos to understand the purport and attributes of negligence. Negligence, in law, connotes an omission or failure to do something which a reasonable man, under the same circumstance, would do or doing of something which a reasonable and prudent man would not do, see Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; Abubakar v. Joseph (2008) 13 NWLR Pt. 1104) 307; Diamond Bank Ltd. v. P.I.C Ltd. (2009) 18 NWLR (Pt. 1172) 67; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173; Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Hamza v. Kure (2010) 10 NWLR (Pt. 1203) 630.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the High Court of Lagos State, Lagos Division (hereinafter addressed as “the lower Court”), coram judice: B. A. Oke-Lawal, J., in Suit No. LD/2386/2010, delivered on 25th November, 2015. Before the lower Court, the appellant and the respondent was the second defendant and the claimant respectively.

The facts of the case, which transfigured into the appeal, are amenable to brevity and simplicity. The appellant is an incorporated financial institution which carries on the business of banking in Nigeria. The respondent is an incorporated company in Nigeria which engages in the business of importation and sale of industrial raw materials and allied products. The first defendant in the lower Court, Wuhu Evergrand Green Marketing Corporation (Wuhu) is an incorporated company under the Laws of China and engaged in the production of industrial raw materials. Sometime in April, 2010, the respondent entered into the contract of purchase/supply of Stearic Acid (Tripple Pressed) with Wuhu at a given consideration. The respondent made part-payment of the contract price, in the sum of USD$14,250.00, to Wuhu through telegraphic transfer. The respondent instructed the appellant to pay the balance of the contract price, USD$33,250.00, to Wuhu by debiting from the respondent’s account with the appellant the sum of N5,513,681.85, being the Naira equivalent of the balance, for the purchase of the USD$33,250.00. The goods (Stearic Acid) were shipped to the respondent in Nigeria. However, the respondent alleged that upon clearing the goods, on 12th August, 2010, it discovered that they were substandard and its customers refused to buy them. The discovery was made after the respondent had subjected the goods to a laboratory analysis in Nigeria, the result of which did not agree with the Wuhu’s certificate of analysis upon which the contract was based. The respondent reported the matter to the Chinese Embassy and the National Agency for Food, Drug and Administration Control (NAFDAC). The Chinese Embassy took no action but advised it to sue Wuhu. On 30th August, 2010, the respondent requested the appellant to credit back the sum of N5,513,681.85, which it debited on its instructions, to its account because the goods shipped by Wuhu were substandard. The appellant has failed to reverse the debit. Sequel to that, the respondent beseeched the lower Court, via a writ of summons, filed on 2nd December, 2010, and tabled against Wuhu and the appellant the following reliefs:
1. The sum of USD$33,102.00 against the 1st Defendant being the sum total of the payment made by the Claimant to the 1st Defendant by Telegraphic Transfers on 19th March, 2010 and 21st and 23rd April, 2010.
2. Order of Court directing the 2nd Defendant to credit to the Claimant’s account with the sum of N5,513,681.85 debited from the Claimant’s account for payment to the 1st Defendant.
3. The sum of N20 Million against the 1st Defendant being damages for breach of the contracts entered into between the Claimant and the 1st Defendant in March and April, 2010.

In reaction, on service of the processes, the appellant joined issue with the respondent by filing a statement of defence. Therein, the appellant justified its reason for failure to reverse the debit. The appellant asserted that it received the shipping documents against payment of the USD$33,250.00 from Wuhu’s bank, Shanghai Pudong Development Bank Company Limited (the Chinese Bank) for the transaction between Wuhu and the respondent. It explained that the collecting instruction for the transaction was that shipping documents should be released against payment, that is, the appellant was required to receive the monetary value of the shipping documents before handing them over to the respondent. It claimed that the reversal of the debit was not feasible and would be unprofessional because it would be contrary to the Chinese Bank’s instruction on the shipping documents. It raised other legal defences in its statement of defence.

Following the discordant claims, the lower Court had a full-blown determination of the case. In proof of the case, the respondent fielded a witness: CW1. In disproof of the case, the appellant called a single witness: DW1. The first defendant did not defend the action. Tons of documentary evidence was tendered by the parties. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court in manner required by law. In a considered judgment, delivered on 25th November, 2015, reflected at pages 477–501 of the record, the lower Court granted the respondent’s claim.

The appellant was dissatisfied with the judgment. Hence, on 29th December, 2015, the appellant lodged a 3-ground notice of appeal, copied at pages 503–506 of the record, wherein it prayed this Court for:
(i) AN ORDER setting aside the decision of Honourable Justice B. A. Oke-Lawal (Mrs.) of the Lagos State High Court, which decision is contained in the judgment of the said Honourable Justice B. A. Oke-Lawal (Mrs.) delivered in Suit No: LD/2386/2010 on the 25th day of November, 2015 entering final judgment against the Appellant.
(ii) AND FOR SUCH FURTHER ORDERS as the circumstances of the present appeal may permit.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of civil appeals in this Court. The appeal was heard on 25th May, 2022.

During its hearing, learned counsel for the appellant, Sylva Ogwemoh, SAN, adopted the appellant’s brief of argument, filed on 4th May, 2017 but deemed properly filed on 22nd May, 2019, and the appellant’s reply brief of argument, filed on 5th November, 2020 but deemed properly filed on 25th May, 2022, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Nick Omeye Esq., adopted the respondent’s brief of argument, filed on 3rd June, 2020 but deemed properly filed on 25th May, 2022, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned senior counsel distilled a singular issue for determination, to wit:
Whether the learned trial Judge was right to hold that the Appellant did not exercise its duty to care to the Respondent on the letter of credit transaction thereby awarding N10,000,000.00 (Ten Million Naira) general damages against the Appellant when in the pleadings of the Respondent at the lower Court no allegation of breach of duty of care was made against the Appellant by the Respondent, and when the Respondent did not also seek damages against the Appellant in its Writ of Summons and Statement of Claim.

In the respondent’s brief of argument, learned counsel crafted a sole issue for determination, namely:
Whether the trial Court was right in awarding general damages against the Appellant for withholding the Respondent’s N5,113,681.85 despite repeated demands that the funds be credited to the Respondent’s account, and despite letters showing that the Respondent was defrauded by Wuhu Evergrand Green Corporation, China.

A close look at the two sets of issues shows that they, save for semantics, identical in substance. In fact, the respondent’s one issue can be, conveniently, subsumed under the appellant’s. Given this sameness, I will decide the appeal on the issue nominated by the appellant: the undoubted owner of the appeal.

Arguments on the issue.
Learned appellant’s counsel submitted that the transaction between the parties was documentary letter of credit and the appellant’s duty was to receive and release shipping documents and no more. He asserted that the respondent did not plead the factors of negligence and the lower Court’s award of damages amounted to making a case for a party. He relied on UBN Plc v. Emole (2001) 12 SC (Pt. I) 106/(2001) LPELR–3392 (SC); Okanu & Sons Co. Ltd. v. FBN Plc. (2006) 5 SC (Pt. III) 80; Agbonmagbe Bank Ltd. v. C.F.A.O. (1966) 1 ALL NLR 140. He stated that in documentary letter of credit transaction, the parties to the credit deal with documents and not goods or services which are of interest to the buyer and seller. He described it as independence principle in banking. He cited Uniform Rules for Collection No. 522 (URC); articles 4, 5, 7(b) of the Uniform Customs and Practice for Documentary Credits (UCP600); the evidence of CW1; Article on International Trade: A Practical Introduction by Roberto Bergami (Eruditions Publishing, 2004); Midland Bank v. Seymour (1955) 2 Lloyd’s Report 147; Nasaralai Enterprises Ltd. v. Arab Bank Nig. Ltd. (1986) 4 NWLR (Pt. 36) 40; Edward Owen Engineering Ltd. v. Barclays Bank Int’l Ltd. & Umma Bank (1978) 1 Lloyd’s Report. He persisted that the lower Court wrongly exercised its discretion in the award of the damages. He reasoned that the appellant has shown reasons for this Court to interfere in the award and urged the Court to interfere with it. He referred to United Bank Plc. v. BTL Ind. Ltd. (2004) 18 NWLR (Pt. 904) 108.

Learned counsel contended that there was no claim for damages, either in the writ of summons or statement of claim, and the lower Court had no power to make the award of damages. He relied on FAAN v. Greenstone Ltd. (2009) 10 NWLR (Pt. 1150) 643; Amadi v. Chinda (2009) 10 NWLR (Pt. 1148) 124; Akinrimisi v. Maerks (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 85. He insisted that the lower Court lacked the jurisdiction to award the damages because out of nothing comes nothing. He cited Macfoy v. UAC (1962) AC 158; Apari v. Hose (1999) 5 NWLR (Pt. 604). He took the view that the award of damages against the appellant was a clear demonstration of injustice as against justice which is for all the parties. He referred to Williams v. Hope Rising (1982) 2 SC 145; Labaran v. Okoye (1995) 4 NWLR (Pt. 389) 320.

On behalf of the respondent, learned counsel argued that the lower Court was right in making the award because the appellant withheld the money even when it knew that the transaction was a fraud and it failed to show duty of care based on the banker/customer relationship between the parties. He relied on STB Ltd. v. Anumnu (2008) 14 NWLR (Pt. 1106) 125. He added that the appellant withheld the money without any reasonable excuse. He posited that general damage need not expressly be prayed for before awarding it because it is at large and the yardstick is based on the test of reasonable man on the street. He cited Elf Pet. Nig. Ltd. v. Umar (2007) 1 NWLR (Pt. 1014) 44; Abah v. Jabusco Nig. Ltd. (2008) 3 NWLR (Pt. 1075) 526. He observed that the appellant owed a duty of care to the respondent by ensuring that it was not duped/defrauded by overseas suppliers. He postulated that the respondent needed not to specifically claim for general damages before awarding them. He referred to UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152. He reasoned that the banker/customer relationship between the parties imposes a duty of care on the appellant. He cited STB Ltd. v. Anumnu (supra). He added that evidence showed that the duty of care was breached.

Learned counsel submitted that the URC was made subject to the Import Guidelines, Procedures and Documentation made under the Destination Inspection Scheme in Nigeria (the Guidelines) which are meant to ensure imported goods are of the specified standard. He described the imported goods as fake contrary to the requirement of the Guidelines. He maintained that the duty of care was breached. He said the lower Court did not make a case for the respondent. He asserted that the URC, relied on by the appellant in the lower Court, is different from the UCP 600 which it wrongly introduced in the appeal for the first time. He added that it is still subject to the Guidelines. He enumerated the conditions for the application of the URC as noted in SGBN Ltd. v. Bremar Holdings Ltd. (2001) 14 NWLR (Pt. 734) 717. He insisted that the application of the URC is not absolute.

It was argued that the appellant in the lower Court relied on Bills of Collection and is estopped from relying on letters of credit (LC) in the appeal as that means to approbate and reprobate. He claimed that the appellant’s duty included forwarding customs control documents to the Central Banking of Nigeria (CBN) after the respondent has cleared the goods with the shipping documents. He declared the appellant’s authorities as inapplicable. He took the view that the appellant’s argument applies to countries that practice Pre-Shipping Inspection Scheme.

On points of law, learned appellant’s counsel submitted that the letter of 30th August, 2010, exhibit Q, only informed the appellant of substandard goods not fraud. He stated that the exhibit speaks for itself. He relied on Asuquo v. Omole (2019) LPELR–47867 (CA); Ozomaro v. Ozomaro (2014) LPELR–22663 (CA). He noted that the respondent did not specifically raise and particularised fraud in its pleadings as required by law. He cited Anyafulu v. Maduegbura Meka (2014) LPELR–22336 (SC); Abdulrahman v. Oduneye (2009) 17 NWLR (Pt. 1170) 220; Otukpo v. John (2012) LPELR–20619 (SC). He reasoned that complaint about quality of goods is not enough ground to stop an issuing bank from carrying out its obligations in the letters of credit. He referred to Article 13 of the URC No. 522; Article 15 of the UCP 600; Hamzel Melas & Sons v. British Imex Ind. Ltd. (1958) 2 Q.B. 127; Nasaralai Ent. Ltd. v. Arab Bank Nig. Ltd. (supra). He persisted that the issuing bank must have notice of fraud to affect the transaction on letters of credit. He cited RD Harbottle (Merchantile) Ltd. v. National West Minister Bank Ltd. (1978) Q.B. 146; Maurice O’Meara Co. v. National Park Bank, 239 N.Y. 386, 146 N.E. 636 (1925); Societe Metallurgique D’ Aubrives & Villerupt v. British Bank for Foreign Trade, II Llody’s List L. Rep. 168 (K.B. 1922); Tukan Timber Ltd. v. Barclays Bank Plc. (1987) I Llody’s Rep 171; Boliventer Oil S.A. v. Chase Manhattan Bank N.A. (1984) 1 W.L.R. 392.

Learned counsel postulated that an issuing bank is not required to take further steps to investigate the genuineness of the proforma invoice other than taking a visual inspection of the documents presented to it. He relied on Singh & Co. v. Banue de L’Indochine (1974) 2 Lloyd’s Report 1; Nasaralai Ent. Ltd. v. Arab Bank Nig. Ltd. (supra); Bank of Nova Scotia v. Angelica-Whitewear Ltd. (1987) 1 SCR 59. He opined that the credit transaction is governed by the URC, like the UCP 600, and its procedure must be followed fully as it applies to international documentary credit. He cited FGN v. Zebra Energy Ltd. (2002) 18 NWLR (Pt. 798) 162; Glencore International A.G. v. Bank of China (1996) 1 Lloyd’s Rep. 135; Article 4 (a)(1) of URC; FRN v. Osahon (2006) 5 NWLR (Pt. 973) 301; Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498) 124. He explained that the URC and UCP 600 are not in conflict and both are important. He referred to Fortis Bank SA/NV v. Indian Overseas Bank (2011) EWCA Civ 58.

Learned counsel argued that the duty of care in commercial credit transaction is a different one. He relied on Tirupati Texkait Ltd. (T.T. Ltd) v. Habib Bank Ltd (LQ. 2013 HC 10346; Regular First Appeal No. 209 2007 delivered on 7th January, 2013; Malas (Hamzeh) & Sons v. British Imex Ind. Ltd. (supra). He stated that both bill of collection and letters of credit are international commercial credit transactions with the same principles of payment. He referred to UBA Plc. v. BTL Ind. Ltd. (supra); United City Merchants Invest. Ltd. v. Royal Bank of Canada (1982) 222. He took the view that general damages must be specifically claimed. He relied on UBN Plc. v. Ajabule (supra); Mekwunye v. Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191; British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253.

Resolution of the issue.
A clinical audit of the solitary issue, amply, discloses that it is a highly, loaded stubborn issue. It exudes two limbs: lack of proof of: (a) negligence and/or breach of contract and (b) non-claim of general damages against the appellant.

In an abiding loyalty to the dictate of the law, I will attend to the second limb. The marrow of the limb is plain and canalised within a narrow compass. It queries the jurisdiction of the lower Court to grant the respondent’s claim for general damages against the appellant. The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt.1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. I will obey this legal commandment so as not to insult the law.

Now, the main anchor of the appellant’s nursed grievance, indeed its trump card on this nagging limb, is that the respondent never claimed, either in its writ of summons or statement of claim, general damages against the appellant and, ipso facto, the lower Court was disrobed of the jurisdiction to award the same to it. It is an enticing invitation to this Court to carry out a judicial survey of jurisdiction of Court over unclaimed relief within the firmament of the law.

To begin with, relief, which is usually domiciled in the twilight of the appropriate process, summons or statement of claim or petition, occupies a kingly position in adjudication. Every statement of claim, which usually supercedes a writ of summons, terminates with a prayer/relief. Hence, its absence in the right process renders it incompetent and submissive to penalty of striking out, see Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275.
There is no gainsaying the fact that relief, inter alia, is one of the determinants of jurisdiction of Court. In other words, relief is one of the barometer which a Court uses in measuring the presence or absence of jurisdiction over an action, see Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114; PDP v. Oranezi (2018) 7 NWLR (Pt. 1618) 245; Gbileve v. Addingi (2014) 16 NWLR (Pt. 1433) 394; Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Dec Oil & Gas Ltd. v. Shell (Nig.) Gas Ltd. (2019) 14 NWLR (Pt. 1692) 273.

It is an elementary law, known for its antiquity, that a Court of law is drained of the jurisdiction to grant a relief that is not claimed by a party to a suit, see Ochonma v. Unosi (1965) NMLR 321; Agu v. Odofin (1992) 3 SCNJ 161; Agbi v. Ogbe (2006) 11 NWLR (Pt. 990) 65; Eagle Super Pack (Nig.) Ltd. v. ACB Plc. (2006) 19 NWLR (Pt. 1013) 20; Odunze v. Nwosu (2007) 13 NWLR (pt. 1050) 1; Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 13 NWLR (Pt. 1105) 486; Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81; Oduwole v. West (2010) 10 NWLR (Pt. 1203) 598; Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450; Unijos v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 547; Al-Hassan v. Ishaku (2016) 10 NWLR (pt. 1520) 230. The rationale behind this ageless principle of law is not far-fetched. A Court of law is not clothed with the garment of a philanthropist that dishes out awards that are not solicited by recipients. For a Court to make an order which no party has supplicated for and which the parties were not heard constitutes a gross infraction of the other party’s inviolable constitutional right to fair hearing as enshrined in Section 36(1) of the Constitution, as amended, the fons et origo of our laws, see Umukoro Usikaro v. Itsekiri Communal Land Trustees (1991) 12 SCNJ 75 at 91/(1991) 2 NWLR (Pt. 172) 150; Kalejaiye v. LPDC (2019) 8 NWLR (Pt. 1674) 365.

At the cradle of this judgment, I had, in due obeisance to the law, catalogued the respondent’s trio claims. The casus belli of this vexed point is the propriety/legality or otherwise of the lower Court’s grant of the third relief. Being the cynosure of the knotty point, I will, at the expense of verbosity and repetition, but borne out of necessity, pluck it out whence it is ingrained in the record, ipsissima verba, as follows:
3. The sum of N20 Million against the 1st Defendant being damages for breach of the contracts entered into between the Claimant and the 1st Defendant in March and April, 2010.

It admits of no argument that the prayer, chronicled above, is rebellious to woolliness. To this end, the law mandates the Court to accord it its liberal/ordinary grammatical meaning without any embellishments. It is crystal clear, based on the phraseology and tenor of the third relief supra, that it is targeted against the first defendant before the lower Court, the Wuhu, for breach of the contract between it and the respondent. The appellant’s name was/is not mentioned, directly or circuitously, in the relief. Curiously, the lower Court, at the twilight of its judgment, at the foot of page 50 of the mountainous record, decreed: “General damages is awarded in the sum of N10 Million” against the appellant. The award, to all intents and purposes, is alien to the solicitations in the pleadings as it is, deeply, rooted in a pseudo-claim. The lower Court, without any rationalisation therefor, shut its judicial eyes to the respondent’s clear pleadings and prayers. It is a rudimentary law, in our adversarial system of adjudication, that the duty of a Court, in a civil claim, is to merely render unto a party in accordance to his proven claim. In the eyes of the law, the award, sought to be expelled, is a gratuitous award par excellence. Indeed, it is a mirror image of a windfall. It is trite law, that a Court of law is not a santa claus that doles out award to a recipient who never solicited for it. In effect, the unmerited award of N10 million, dashed to the respondent, is, highly, offensive to the letter and spirit of the law, as anatomised above, on the footing of the want of the requisite jurisdiction of the lower Court to make it. It is marooned in the murky ocean of perversity.

Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; Isah v. INEC (2016)18 NWLR (Pt. 1544) 175.

In the eyes of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (Pt.1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The dire consequence of a nullity is dismal. If a decision or an order is smeared with nullity, it is void and taken as if it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Furthermore, such a decision or an order, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party, see Ajibola v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265.

The bounden duty of a Court is to set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v. Hajo (supra); N. A. C. B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364. Since the award is a mired in the quicksand of nullity, its destiny is obvious. In order to pacify the law, it has to be mowed down by the unbiased judicial sword of this Court.

Having dispensed with the second limb, I reverse to settle the first limb. The kernel of this limb is submissive to easy appreciation. It chastises the lower Court’s finding of breach of duty of care against the appellant in awarding the damages when negligence was not pleaded. It is a subtle summon on this Court to engage in the exploration of the undulating forensic contours of pleading within the firmament of adjectival law.

In a civil action, pleadings are the written statements of the parties wherein they set forth the summary of the material facts on which each party relies either in proof of his claim or his defence, as the case may be, and by means of which the real matters in controversy between the parties and to be adjudicated upon are clearly identified, see Belgore v. Ahmed (2013) 8 NWLR (Pt. 1355) 60. The importance of pleading in our adversarial system of adjudication cannot be overemphasised. It compels feuding parties to define precisely the issues in contention in order to avoid any element of surprises as well as abridge the proceeding between them, see Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307.

As a result of their essentiality, parties and Courts are bound by the pleading of the parties; none is allowed to stray away from them, see Abubakar v. Joseph (supra); Baliol (Nig.) Ltd. v. Navcon (Nig.) Ltd. (2010) 16 NWLR (Pt. 1220) 619; Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534; Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535.

Any evidence which is not based on the pleadings or at variance with them goes to no issue and liable to be jettisoned by the Court. In the same vein, any pleading that is not supported by evidence is deemed abandoned, see UBN Plc v. Ajabule (2011) 18 NWLR (Pt. 1278) 152; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230.

It is apropos to understand the purport and attributes of negligence. Negligence, in law, connotes an omission or failure to do something which a reasonable man, under the same circumstance, would do or doing of something which a reasonable and prudent man would not do, see Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1; Abubakar v. Joseph (2008) 13 NWLR Pt. 1104) 307; Diamond Bank Ltd. v. P.I.C Ltd. (2009) 18 NWLR (Pt. 1172) 67; Ighreriniovo v. S.C.C. (Nig.) Ltd. (2013) 10 NWLR (Pt. 1361) 138; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173; Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Hamza v. Kure (2010) 10 NWLR (Pt. 1203) 630.

Negligence is a question of fact, not law, so that each case has to be decided on its peculiar facts, see S.B.N. v. Motor Parts Installation Ltd. (2005) All FWLR (Pt. 260) 103; African Petroleum v. Soyemi (2008) All FWLR (Pt. 397) 117; F.A.A.N. v. W.E.S. (Nig.) Ltd. (2011) 8 NWLR (Pt. 1249); Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Royal Ade (Nig) Ltd. v. N.O.C.M. Co Ltd. (supra); A.B.C. Transport Co. Ltd. v. Omotoye (2019) 14 NWLR (Pt. 1692) 1971.

In Donoghue v. Stevenson (1932) AC 562/(2002) 12 WRN 10, the locus classicus on negligence, the erstwhile House of Lords evolved three ingredients of negligence, which a plaintiff must establish, thus: that the defendant owed him a duty of care, that there was a breach of the duty and that the breach caused him injury or damage. These three ingredients have since been accepted and assimilated in the Nigerian jurisprudence, see Agbonmagbe Bank Ltd. v. CFAO (1967) NWLR 173; FBN Plc. v. Associated Motors Co. Ltd, (1998) 10 NWLR (Pt. 570) 441; Abubakar v. Joseph (supra); Iyere v. B.F.M. Ltd. (2008) 18 NWLR (Pt. 1119) 300; Diamond Bank Ltd. v. P.I.C. Ltd. (supra); Ighreriniovo v. S.C.C. (Nig.) Ltd. (supra); Royal Ade (Nig.) Ltd. v. N.O.C.M. Co Plc (2004) 8 NWLR (Pt. 874) 206; Makwe v. Nwukor (2001) 14 NWLR (Pt. 733) 356; Abusomwan v. Mercantile Bank Ltd. (1987) 3 NWLR (Pt. 60) 197; A.B.C. Transport Co. Ltd. v. Omotoye (supra); British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253.

To start with, the law commands the Court to read pleading holistically in order to garner a flowing story of it, see Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1; Agi v. PDP (2017) 17 NWLR (Pt. 1595) 366; NNPC v. Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676) 67.

I have, in due fidelity to the desire of the law, consulted the record – the spinal cord of the appeal. My port of call is at the residence of the respondent’s statement of claim which monopolises pages 3-6 of the record. I have, in due allegiance to the injunction of the law, given a global/holistic examination to the respondent’s pleading with the finery of a toothcomb. Admirably, it is comprehension-friendly. Incidentally, curiously at that, I am unable to locate, even with the prying eagle-eye of an appellate Court, where the respondent, expressly or explicitly, averred facts on negligence with its accompanying particulars as decreed by law, see Makwe v. Nwukor (supra). As already noted, negligence is a question of fact. A party that erects its case on negligence must plead it explicitly and follow it with the necessary particulars. Civil cases are fought on pleadings. Any evidence offered by a party on unpleaded facts serves no legal useful purposes as it goes to no issue. The respondent’s evidence anchored on the tort of negligence, especially existence of duty of care and its breach, the facts of which were not pleaded, at best, acquired an unenviable status of an orphan. This is because, it had no legal substratum/parentage to perch and claim any validity. It stems from the foregoing, that the lower Court’s finding on duty care and its breach against the appellant is not in alignment with the tenet of the law. It is an impeachable finding that is bound to magnet the reprobation this Court. It will smell of judicial sacrilege to endorse a finding that has disclosed serious hostility to the law.

That is not all. The nature of the contract inter partes was discernible from the pleadings of both parties. The respondent had, in April, 2010, instructed the appellant to open a letter of credit in its favour for the payment of its overseas customer, Wuhu, for the contract of purchase of Stearic Acid (Triple Pressed). In essence, the contractual relationship between the appellant and the respondent was, deeply, staked on documentary letter of credit transaction. In law, documentary letter of credit or banker’s documentary letter of credit signifies an undertaking by a banker to meet drafts drawn under the credit by the beneficiary of the credit in accordance with the conditions laid down therein. Letter of credit denotes a commitment by a bank on behalf of the importer (foreign buyer) that payment will be made to the beneficiary (exporter) provided that the terms and conditions stated in the letter of credit have been met as evidenced by the presentation of specified documents, see Conoil v. Vitol S.A. (2018) 9 NWLR (Pt. 1625) 463. Documentary credit is used to finance international trade through the medium of bankers. This is necessary, especially as international commerce has been instrumental in “squeezing” the world into a commercial size and thereby making international trade and commerce indeed much easier than domestic commerce.

In the United City (Investments) Ltd. v. Royal Bank of Canada (1983) AC 108 at 182 and 183, Lord Diplock invented the four autonomous, though interconnected, contractual relationships, videlicet: (1) the contract of sale of goods to the buyer by the seller (2) the contract between the buyer and the issuing bank for the opening of the letter of credit (3) the contract between the issuing bank and the confirming bank for making payment to the seller (4) the contract between the confirming bank and seller concerning the payment to the seller on presentation of the document mentioned in the letter of credit. This categorisation has been propagated firmly in our corpus juris, see Akinsanya v. UBA Ltd. (1986) 4 NWLR (Pt. 35) 273; Nasaralai v. Arab Bank (1986) 4 NWLR (Pt. 36) 409. An autochthonous of contract, the fifth contract, was by Bello, JSC, (as he then was) in Nasaralai v. Arab Bank (1986) 4 NWLR (Pt. 36) 409, namely: a contract of affreightment between a shipowner and a shipper, id est, the seller or his agent, by which a shipowner agrees to carry in his ship for reward the goods for which the letter of credit was issued and to deliver the goods to the buyer or his agent.

Indisputably, grounded on the pleadings and evidence offered by the feuding parties, the contract between them fell squarely within the perimeter of the second contract. This specie of contract is governed/regulated by URC and UCP 600. It is primarily concerned with documents, not goods. In other words, the obligation of an issuing bank is limited to receipt, ex facie confirmation and transmission, of the shipment documents involved in the primary/underlying contract between the importer (buyer) and the exporter (seller), see Article 8 (a) of the UCP 600. Indeed, by Article 13 of URC, which is in pari materia with Article 9 of the UCP, the banks assume no liability or responsibility for the form, sufficiency, accuracy, genuineness, falsification or legal effect of any document; nor do they assume any liability or responsibility for the description, quantity, weight, quality, conditions, packing, delivery, value or existence of the goods represented by documents or for the acts and/or omissions, solvency, performance or standing of the consignors, the carriers, forwarders, consignees or the insurers of goods or any other person whatsoever. This provision, which is all-encompassing, donates generously a carte blanche to the banks vis-à-vis any liability germinating from the documents and the goods no matter the source. It has trimmed their (banks’) liability to the barest minimum. In essence, the duty of the issuing bank, or even correspondent/confirming/accepting/advising bank, which is an agent of the issuing bank, does not extend to the genuineness vel non of the documents, a fortiori goods which are the subject matter/res of the primary contract, see Akinsanya v. UBA Ltd. (supra); Nasaralai v. Arab Bank (supra).
Flowing from this brief legal anatomy on documentary letter of credit, concretised by ex cathedra authorities, the appellant’s duty in the contract with the respondent was confined to collection of the shipment documents from the confirming bank, the Chinese Bank, its agent, and delivery of the same to the respondent. There are impregnable evidence on record that the appellant received the documents and delivered them to the respondent and it cleared the goods from the Apapa Wharf. Thus, the appellant honoured its obligation in the contract creditably. This is more as the law, as displayed above, in its infinite wisdom, does not bestow/laden on the appellant the responsibility to oversee and ensure the genuineness of the agreement and the goods in the primary contract. To this end, the respondent’s grudge against the quality of the goods, id est, that they were fake and substandard, orbits outside the four walls of the bounden duty of the appellant in the contract of documentary credit.

In a spirited bid to castrate/amputate this limb and create liability for the appellant, the respondent contrived the defence of fraud. It accused the appellant of breach of duty of care by allowing/condoning perpetration of fraud or fraudulent practices/acts against it in the defective products.
Fraud, a leprous term, is amphibious in application as it “covers commission of crime as well as incidents of mere impropriety”, seeOkoli v. Morecab Finance (Nig) Ltd(2007) 14 NWLR (Pt. 1053) 37 at 72, per Ogbuagu, JSC. It connotes a willful act on the part of someone, whether words or conduct whereby another person is sought to be deprived, by illegal or inequitable means, of his entitlement, see Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Egbo v. Nwali (1998) 6 NWLR (Pt. 553) 195; Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382; Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392; Otukpo v. John (2012) 7 NWLR (Pt. 1299) 357; ACN v. INEC (2013) 13 NWLR (Pt. 1370) 161; Trade Bank Plc v. Pharmatek Ind. P. Ltd. (2020) 8 NWLR (Pt. 1725) 124.

The law insists that a party who invites and relies on fraud in a case must plead and prove it by evidence beyond reasonable doubt, see Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) 37; Belgore v. Ahmed (supra); Obitude v. Onyesom Comm. Bank Ltd. (2014) 9 NWLR (Pt. 1412) 352; Yakubu v. Jauroyel (2014) 11 NWLR (Pt. 1418) 205; Malami v. Ohikhuare (2019) 7 NWLR (Pt. 1670) 132.

It admits of no argument that the hallowed principle of documentary credit, x-rayed above, is inflexible in its application. It’s elasticity is located in the invidious territory of fraud. Proof of fraud vitiates the contract of documentary credit. This exception traces its paternity to the maxim ex turpi causa oritu non action – No action arises out of wrongful consideration, see Akinsaya v. UBA Ltd. (supra). Nobody is allowed to benefit from his own wrong. Nor can a Court allow itself to be used as an engine of fraud.

Nevertheless, the respondent has only scored a barren victory on the point. The reason is not far-fetched. In the first place, I have given an intimate reading to the respondent’s pleadings, statement of claim and reply to the 2nd defendant’s statement of defence, which monopolises pages 3-6 and 148-151 of the windy record respectively. Both do not harbour any ambiguity. There is no place, in the copious pleadings, where the respondent pleaded particulars of the alleged fraud as ordained by law. Put differently, the respondent, in its infinite wisdom, starved its adversary, the appellant, and the Court of the particulars of fraud which is sine qua non for deployment of fraud in any adjudication. The drought of those particulars constitutes a serious coup de grace to the defence of fraud mounted by the respondent. The necessity to plead particulars of fraud is to guard against unleashing surprise on an opponent – the appellant herein.
Besides, the defence of fraud against documentary credit transaction thrives where the party, relying on it as shield, apprise his opponent of it. In other words, such a party has to demonstrate that his adversary has actual/constructive notice or foreknowledge of the fraud, see Nasaralai v. Arab Bank (supra). The telling evidence on record, viva voce and documentary, centre on the defective nature of the goods which the respondent intimated the appellant after their collection. It flows that the respondent, contrary to the mandate of the law, failed woefully to furnish the appellant with the knowledge, not even constructive notice, of the alleged fraud against it by the Wuhu. In the glaring absence of that knowledge, the appellant cannot be inculpated as particeps fraudis in the underlying contract between the respondent and the exporter (the seller). In the aggregate, want of particulars and knowledge, with due respect, puncture and expose the poverty of the defence of fraud. In effect, the defence of fraud, which the respondent erected, brandished and paraded to breathe life into the lower Court’s finding, is disabled from its birth. It is unsustainable and uncharitable. The law discharges and acquits the appellant of the weak-kneed defence of pseudo-fraud. It cannot fly! The lower Court, with due respect, deeply, erred in law on its finding on this limb of the issue. It deserves the reprobation of this Court.

In the spirit of completeness, the appellant implored this Court to interfere with the award of N10 Million general damages as being an affront to the law. An appellate Court does not usually interfere with award of damages unless: (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of some principles of law; or (c) where the trial Court acted under misapprehension of facts; or (d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is ridiculously low or high that it must have been a wholly erroneous estimate of the damages, see Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512; British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253; Mekwunye v. Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191.

My noble Lords, I had just found, after due consultation with the law, that the lower did not pay due allegiance to the law in the award of the N10 Million general damages in the case which parented the appeal. The lower Court acted under serious misconception of law when it assumed jurisdiction to grant an unclaimed relief against the appellant. The finding/award was enmeshed in the mud of misapprehension of facts. It treated the principles governing award of general damages with total disdain and contempt. Its disrespect for the law snowballed into injustice that cries for interference by this Court. In sum, the appellant has showcased sufficient justifications to propel this Court to tinker with the award of general damages as it irritates the law.

Flowing from this expansive tour d’ horizon on unclaimed relief and documentary letter of credit, done in consonance with the law, the lower Court’s grant of the respondent’s claim against the appellant flies in the face of the law. It will smell of judicial sacrilege not to vacate a finding that has disclosed serious hostility to the law. In the end, I have no choice but to resolve the sole issue in favour of the appellant and against the respondent.

On the whole, having resolved the mono issue in favour of the appellant, the destiny of the appeal is obvious. It is imbued with merit. Consequently, I allow the appeal. Accordingly, I set aside the judgment of the lower Court which was delivered on 25th November, 2015. The parties shall bear the respective costs they incurred in the prosecution and defence of the fruitful appeal.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read before now, a copy of the judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA, in which this appeal was allowed. I completely agree with, and adopt as mine, the reasoning and conclusions therein, as very ably presented by my learned brother. I will only make few points in support.

Pleadings in any matter is fundamental. Civil litigation is fought on pleadings. They are the pillars upon which a party’s case is founded. A Court is bound to consider only issues raised on the pleadings before it. Evidence given, which is not supported by the pleadings, goes to no issue and will be disregarded. This is the settled position of the law. See also Oshoboja v. Amuda & Ors (1992) LPELR-2804(SC); Falke v. Billiri Local Government Council & Ors (2016) LPELR-40772(CA); Ogbere & Anor v. Ukpo (2021) LPELR-56390(CA).

Fraud, in most cases, involves something dishonest and morally wrong; Olufunmise v. Falana (1990) LPELR-2616(SC); Vulcan Gases Ltd. v. G.F. Ind. A-G; (2001) 9 NWLR (Pt.719) 610 at 624; Umanah v. Attah & Ors (2006) LPELR-3356(SC).

The issue of fraud has to be pleaded with particularity and established in evidence. Fraud cannot be inferred from the facts pleaded. Where there is an allegation of fraud, the party alleging fraud is not only required to make the allegation in his pleadings but must in the pleadings set out particulars of fact establishing the alleged fraud, so that the defendant goes into Court prepared to respond thereto, eschewing the element of surprise; Otukpo v. John & Anor (2012) LPELR-25053(SC); Bessoy Ltd v. Honey Legon (Nig) Ltd & Anor (2008) LPELR-8329(CA); Confitrust (Nig) Ltd v. Emmax Motors Ltd & Ors (2016) LPELR-41428(CA). The respondent herein failed to plead particulars of fraud alleged against the appellant. In this circumstance, the trial Court is not permitted to infer any such allegation of fraud.

For this reason, and for the more comprehensive reasons given in the leading judgment. I also allow this appeal, and abide by the orders made by my learned brother.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I hereby give my concurrence to the leading judgment of my learned brother, OBANDE FESTUS OGBUINYA, JCA, the draft of which I had the privilege of reading before now.

I adopt the judicial reasoning and conclusions reached on the issues raised in this appeal in allowing this appeal and setting aside the judgment of the lower Court in Suit No. LD/2386/2010 delivered on 25th November 2015. I equally abide by the consequential order on costs.

Appearances:

Sylva Ogwemoh, SAN, with him, Wahab Dako, Esq., Felix Ayem, Esq. and Constance Awoegbe, Esq. For Appellant(s)

Nick Omeye, Esq., with him, Onyekachi Asogwa, Esq. For Respondent(s)