GUARANTY TRUST BANK PLC V. FOX GLOVE NIG. LTD

CORAM

EMMANUEL AKOMAYE AGIM

SOTONYE DENTON-WEST

EMMANUEL AKOMAYE AGIM

SOTONYE DENTON-WEST

EMMANUEL AKOMAYE AGIM

PARTIES

GUARANTY TRUST BANK PLC APPELLANTS

FOX GLOVE NIG. LTD RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Respondent who was a distributor with MTN Communications Ltd. applied for a bank guarantee of N10 million from the Appellant to guarantee its trading capacity with MTN. By a letter of offer issued to the Respondent by the Appellant, the parties agreed that the Appellant reserved the rights to withdraw the guarantee by giving a 60 day period of notice to the Respondent and MTN Nigeria Communications Limited (MTN). Contrary to the agreement of the parties, the Appellant unilaterally terminated the agreement prematurely. Aggrieved with that, the Respondent instituted an action at the High Court of Justice, Lagos State, claiming a declaration that the termination of the bank guarantee unilaterally was unlawful and void, that the Respondent is entitled to damages as a result of the negligent act of the Appellant and the effect of the negligence on the Respondents’ business with MTN Nigeria Communication Limited, special damages to the tune of Twenty Million Naira and the sum of Fifty Million Naira from 1st June 2008 to the determination of this suit as damages for the unlawful and arbitral termination of the bank guarantee. The trial court in entering judgment in favour of the Respondent awarded Ten Million Naira with 21 % interest and 4% post judgment interest against the Appellant for breach of contract of bank guarantee, hence this appeal.

HELD

Appeal Dismissed

ISSUES

? Whether the termination of the Bank Guarantee by the Appellant is lawful having regard to the circumstances of this case.? Whether the Lower Court was right in awarding the sum of N10 million as damages against the Appellant together with interest thereon when the respondent did not prove negligence which it anchored its claim on damages for wrongful termination of Bank Guarantee.”

RATIONES DECIDENDI

ISSUE FOR DETERMINATION – STATUS OF AN ISSUE NOT BASED ON THE GROUND OF APPEAL

“Any of the issues for determination (supra) not having arisen from any of the grounds of appeal on pre-judgment interest is incompetent as well as the arguments built on it which are hereby struck out vide Chami v. U.B.A. Plc (2010) 6 NWLR (pt. 1191) 474, Ekiti State House of Assembly v. Fayose (2010) 2 NWLR (pt. 1179) 511.” PER J. S. IKYEGH, J.C.A<foo< p=””></foo<>

EVIDENCE – EFFECT OF EVIDENCE LED ON UNPLEADED MATERIAL

“The respondent did not plead and give evidence of the particulars of negligence thus abandoning relief (2) (supra) for negligence which is hereby struck out as evidence not led on a pleaded material issue goes to no issue and/or evidence led on an unpleaded material matter goes to no issue vide George and Others v. Dominion Flour Mills Ltd. (1963) 1 ALL N.L.R. 71 at 77, National Investment and Properties Co. Ltd. v. Thompson Organization Limited and others (1969) N.M.L.R. 99 at 104 and Emegokwue v. Okadigbo (1973) 3 E.C.S.L.R. (pt. 1) 267 at 270.” PER J.S. IKYEGH, J.C.A.<foo< p=””></foo<>

AWARD OF DAMAGES – CIRCUMSTANCES IN WHICH AN APPELLATE COURT CAN INTERFERE WITH AN AWARD OF DAMAGES

“It is trite that an appellate Court will not intervene with an award of damages by the Court below unless it is made under these peculiar circumstances as restated in the case of Ahmed v. C.B.N. (2013) 2 NWLR (pt. 1339) 524 at 541-542 thus-
“Award of damages is an exercise of discretion by the trial Court. An Appellate Court will not interfere with an award of damages by a trial Court unless it is made under certain peculiar circumstances which include-
1. Where the exercise of discretion by the trial Court is perverse.
2. Where the Court acted under wrong principles of law; or
3. Where the Court acted in disregard of applicable principles; or
4. Where the Court acted in misapprehension of facts; or
5. Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award or
6. Where injustice will result if the appellate Court does not act; or
7. Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages.Ziks Press Ltd. v. Ikoku (1951) 13 WACA pg. 188; Idahosa v. Oronsaye (1959) SCNLR pg. 407; Bola v. Bankole (1986) 3 NWLR (pt. 27) pg. 141; Elf (Nig) Ltd. v. Sillo (1994) 6 NWLR (pt. 350) pg. 258.” PER J.S. IKYEGH, J.C.A.<foo< p=””></foo<>

SERVICE OF PROCESSES – MODE OF SERVICE OF PROCESSES ON A LIMITED LIABILITY COMPANY

“The Companies and Allied Matters Act by Section 78 makes a provision as how to serve documents generally on any company registered under it. By this, a Court process is served on a company in the manner provided by the Rules of Court. A service on a company, as this provided, must be at the registered office of the company and it is therefore bad and ineffective if it is done at a branch office of the company; see Watkins v. Scottish Imperial Insurance Co. (1889) 23 QBD 285. The procedure is by giving the writ to any director, trustee, secretary or other principal officer at the registered office of the company or by leaving the same at its office.” (My emphasis).” PER J.S. IKYEGH, J.C.A.<foo< p=””></foo<>

TERMS OF CONTRACT – PARTIES ARE BOUND BY THEIR TERMS OF CONTRACT

“Parties are bound by the terms of their contract and the duty of the Court is to enforce the terms of the contract vide NITEL v. Ikpi (2007) 8 NWLR (pt. 1035) 96 and Adetoun Oladeji Nig. Ltd v. NBC Plc (2007) 5 NWLR (pt. 1027) 415 relied upon by the Court below in its judgment in page 208 of the record and B.F.I. Group v. B.P.E. (2012) 18 NWLR (pt. 1332) 209.” PER J.S. IKYEGH, J.C.A.<foo< p=””></foo<>