CORAM
Muhammed Lawal Shuaibu JCA
Muhammed Lawal Shuaibu JCA
PARTIES
CO-OPERATIVE AND COMMERCIAL BANK (NIG) LTD APPELLANTS
A. O.MBAKWE (Carrying on business in the Name and Style A. O. MBAK & Sons Company) RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Respondent bought bales of stockfish from a Norwegian Bank worth USD268, 28S.91 which, by the prevailing exchange rate, translated to N171.297. 3S and in accordance with the terms of the agreement, he handed over the money to the Defendant/Appellant, its banker which was to convert the Nigerian currency to US dollars and remit same to the Norwegian Bank. The plaintiff/Respondent promptly paid the full value to the Defendant/Appellant bank in Nigerian currency but the latter remitted only USD 227.00, leaving a balance of USD 52.285.91. The Plaintiff/Respondent now initiated an action at the Trial Court against the Defendant/Appellant for breach of contract. The Trial Court entered judgment for the Plaintiff/Respondent. Dissatisfied by the decision of the trial Court, the Defendant/Appellant appealed to Court of Appeal.
HELD
Appeal dismissed
ISSUES
Whether the respondent could sue the appellant when the appellant failed to transmit the whole amount to Norway? Whether the awards to the respondent by the trial court were reasonable and justifiable” and proper exercise of judicial discretion under the circumstances?”
RATIONES DECIDENDI
RIGHT OF A PERSON-WHETHER CAN BE WAIVED
“Where the law makes provision in favour of a person, such person can waive his rights under the law. Even where the provisions involve the fundamental rights of the person concerned he can, in appropriate circumstances, waive the rights.
RIGHTS-WHERE A BENEFICIARY OF THE STATUTORY PROVISION WAIVES HIS RIGHTS-IMPLICATION OF
“If the beneficiary of the statutory provisions waives his rights, or is deemed to have waived them, he cannot be heard later to complain about the violation of those rights”.
LOCUS STANDI-WHEN CAN BE WAIVED
“Ordinarily, therefore, where a defendant defends an action knowing that the plaintiff had not been authorized to do so by the third party alleged by the defendant to be the rightful plaintiff, he might not, under the general law, be heard to complain later of the plaintiff’s want of locus standi. Ordinarily he would be deemed to have waived his right to complain about such want of locus standi”.
LOCUS STANDI- NATURE OF
“The question of locus standi is beyond the ordinary run of the mill question. True, it inures to the benefit of the defendant. It does, however, go beyond that. As the fundamental law of the land stands today and as it stood when this matter arose, want of locus standi, in addition to giving the defendant the right to complain, also goes to the competence of any court to exercise the judicial powers vested in federal and state courts by section 6(1) and (2) of the 1979 Constitution prevailing at the time the matter now before us on appeal arose”. PER IKONGBEH JCA
ISSUE OF COMPETENCE-FUNDAMENTAL NATURE OF-WHEN CAN BE RAISED “It is now trite that the issue of the competence of the trial court is so fundamental that it is allowed to be raised at any time, even in the Supreme Court for the first time”.
AN ATTORNEY SUING ON BEHALF OF THE PRINCIPAL-DUTY OF
“The law is clear on the point that if one is suing as attorney for another person; the one should sue in the name of the principal on whose behalf he is suing.
WHETHER A PARTY CAN PUT UP A DIFFERENT CASE ON APPEAL
“The law does not permit party to put up a case at the trial and another, and diametrically opposed case on appeal”.
CASES CITED
Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377 @ 409 C-HUmenwa v. Umenwa (1987) 4 N.W.L.R. (Pt. 65) 407 @ 417-418
STATUTES REFERRED TO
Imo State High Court (Civil Procedure) Rules, 1988Constitution of Federal Republic of Nigeria, 1979|