Legalpedia Citation: (2023-06) Legalpedia 19199 (CA)

In the Court of Appeal

LAGOS JUDICIAL DIVISION

Tue Aug 2, 2022

Suit Number: CA/L/310/2016

CORAM

OBANDE FESTUS OGBUINYA JCA

ONYEKACHI AJA OTISI JCA

PETER ONYINKENIMIEMI AFFEN JCA

PARTIES

ZENITH BANK PLC

APPELLANTS

VIN CHINNY NIGERIA LIMITED

RESPONDENTS

AREA(S) OF LAW

ADJUDICATION, BANKING LAW, LAW OF CONTRACT, LAW OF TORT, JURISDICTION, CIVIL PROCEDURAL LAW, PRACTICE AND PROCEDURE.

SUMMARY OF FACTS

This appeal interrogates the correctness of the decision of the High Court of Lagos State, Lagos Division (trial court). 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, 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 trial Court, via a writ of summons, for remedies, the trial court granted the respondent’s claim. The appellants being dissatisfied with the judgment has lodged an appeal to this court.

HELD

Appeal Allowed

ISSUES

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.

RATIONES DECIDENDI

JURISDICTION – COURTS TO ACCORD

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. OBANDE FESTUS OGBUINYA, J.C.A.

STATEMENT OF CLAIM – THE POSITION OF THE LAW ON THE ABSENCE OF A STATEMENT OF CLAIM IN THE RIGHT PROCESS

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. PER. OBANDE FESTUS OGBUINYA, J.C.A.

RELIEFS – RELIEF IS ONE OF THE BAROMETERS WHICH THE COURT MEASURES THE PRESENCE AND ABSENCE OF JURISDICTION OVER AN ACTION

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. OBANDE FESTUS OGBUINYA, J.C.A. 

RELIEF – WHETHER OR NOT A COURT WILL HAVE JURISDICTION TO GRANT A RELIEF NOT CLAIMED BY A PARTY

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. PER. OBANDE FESTUS OGBUINYA, J.C.A.  

RELIEF – REASON WHY A COURT WILL HAVE JURISDICTION TO GRANT A RELIEF NOT CLAIMED BY A PARTY

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. OBANDE FESTUS OGBUINYA, J.C.A. 

JURISDICTION – EFFECT OF A COURT BEING DRAINED OF JURISDICTION

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. PER. OBANDE FESTUS OGBUINYA, J.C.A. 

NULLITY – MEANING OF NULLITY

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. PER. OBANDE FESTUS OGBUINYA, J.C.A.

NULL ORDER – THE BOUNDEN DUTY OF A COURT TO SET ASIDE A NULL ORDER

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. PER. OBANDE FESTUS OGBUINYA, J.C.A. 

PLEADINGS – MEANING AND IMPORTANCE OF PLEADINGS

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. PER. OBANDE FESTUS OGBUINYA, J.C.A.

PLEADINGS – WHETHER OR NOT EVIDENCE SHOULD BE BASED ON PLEADINGS

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. PER. OBANDE FESTUS OGBUINYA, J.C.A. 

NEGLIGENCE – MEANING OF 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. 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. PER. OBANDE FESTUS OGBUINYA, J.C.A. 

NEGLIGENCE – THE INGREDIENTS OF NEGLIGENCE

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. PER. OBANDE FESTUS OGBUINYA, J.C.A. 

NEGLIGENCE – NEGLIGENCE A QUESTION OF FACT.

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. PER. OBANDE FESTUS OGBUINYA, J.C.A. 

BANKER’S DOCUMENTARY LETTER OF CREDIT – MEANING OF

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. PER. OBANDE FESTUS OGBUINYA, J.C.A. 

CONTRACTUAL RELATIONSHIPS – THE FOUR AUTONOMOUS CONTRACTUAL RELATIONSHIP

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. PER. OBANDE FESTUS OGBUINYA, J.C.A. 

FRAUD – MEANING OF FRAUD

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. PER. OBANDE FESTUS OGBUINYA, J.C.A. 

FRAUD – THE POSITION OF THE LAW ON PLEADING IN FRAUD CASES

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. PER. OBANDE FESTUS OGBUINYA, J.C.A. 

CASES CITED

Not Available

STATUTES REFERRED TO

Not Available

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