Union Bank of Nig. Plc. V. Eskol Paints Nig. Ltd. & Anor (1997)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is an appeal and Cross-appeal against a judgment of ERUAGA, J., of Edo State High Court. holden at Benin City in suit No. B/83/90 delivered on 19th May, 1995 wherein he entered judgment in favour of plaintiffs against the defendants in the sum of N12,455,235.00 being the Naini equivalent of $566,250.00 (US Dollars) negligently transmitted overseas from the account of the plaintiff to a 3rd Party in Ireland without valid guarantee and or without effectively contesting the validity of the said guarantee with interest at the rate of 10% per annum on the judgment debt from date of judgment until payment. But the plaintiffs claim of N10,093,625.74 as accrued interest up to 19/5/94 was dismissed. Cost of the action was assessed at N1,000.00 in favour of plaintiff.

The claim of the plaintiff, as finally perfected under paragraph 19 of their 7th Amended Statement of claim was as follows:-

“Whereof the plaintiffs claim against the defendants as follows;

1. Declaration that the defendants were negligent and or in breach of duty in handling, operating and managing of plaintiffs; foreign exchange transaction, business affairs and accounts with the defendants.
2. An order directing and compelling the defendants to pay the plaintiffs the initial deposit of $566,250 (USD) and the accrued interest of N10,093,625.74 up to 19/5/94 the defendants having negligently paid out the initial deposit from the account of the plaintiff without valid guarantee and or without effectively contesting the validity of the said guarantee.”

The evidence in support of plaintiff’s claim was that sometime in January 1982, the plaintiff instructed the defendants to remit the sum of $566,250 (US Dollars) to a company known as Kingscourt Construction Group Export Limited, at Kingscourt Cavan, Republic of Ireland pursuant to an agreement between the plaintiffs and the said Irish Company.

As a condition precedent for approving the foreign exchange transaction involved in the matter, the Central Bank of Nigeria insisted that the defendants as Bankers of the plaintiffs must obtain a written guarantee on behalf of the plaintiffs from a reputable Bank in Ireland. The defendants duly obtained the Guarantee but kept it under their lock and key, without showing it to the plaintiffs, or even giving them a copy.

In due course the contract between plaintiffs and the Irish Company, which was for the supply of building materials failed to go through, and it became necessary for the Irish Company to refund the sum of $566,250 (USD) already paid to them. For a reason that was not clear the Irish Company did not refund the money. It then became necessary for the defendants to obtain the refund from the Bank of Ireland who had guaranteed the refund of the money. But surprisingly, the Bank of Ireland also refused to pay the money, pointing out for the first time that the Guarantee had expired on 31/12/81 before the defendants sent the money to Ireland. In spite of pressure mounted by the plaintiff on defendants for the money to be refunded to them, the Irish bank still maintained that they had no liability under the guarantee.

In spite of assurances given to the plaintiffs by the defendants that the matter was being “vigorously pursued”, and that the plaintiffs could rest assured that the refund would be pursued to its logical conclusion, no matter how long it took the defendants turned round and wrote a letter dated 19th January, 1990 to the plaintiffs informing them that they have now closed their file on the issue of refund.

It was on the receipt of this letter that the plaintiffs instituted this action against the defendants as already set out above.

In their defence the defendants admitted being paid the sum of $566,250 (US Dollars) by the plaintiffs for transmission to their Contractor Kingscourt Construction Group Exports Limited and they duly did so satisfactorily. They were not therefore aware of whatever caused the failure of the said contract. In any case they contended that the plaintiff had not exhausted the remedies available to them under the contract, before proceeding against the Guarantor. They contended by way of preliminary objection that a guarantor cannot be held for the guarantee until the principal party has been held liable. In any case, they the defendants were merely agents of the plaintiffs in transmitting money to their beneficiaries.

On the question of guarantying the money transmitted above, the defendants averred that the plaintiffs were aware of the requirements of the Central Bank of Nigeria, and that the Bank of Ireland provided a guarantee in compliance with the Central Bank of Nigeria’s requirement. The defendants averred further that they did all that was possible as Bankers to make the Bank of Ireland, short of legal action, to make the guarantor refund the money to no avail. The defendants contended further that the guarantee had not expired as at the time the plaintiff instructed the defendants to remit the money. The defendants stoutly denied liability for negligence alleged against them, and argued that it was rather the plaintiffs who have negligently failed to pursue their rights under the contract between them and their contractor.

There was also an averment that the claims of plaintiffs were statute barred in that they took action on the 8th of February, 1990, a period exceeding six years by virtue of S. 4 (1)(a) of the Limitation Laws of Bendel State, Cap. 89. In conclusion the court was urged to dismiss the plaintiffs’ claim in its entirety as it was an abuse of court process, vexatious and speculative.

In response to the above, the plaintiffs filed a reply statement of defence in which they averred that their right of action herein was concealed by the fraud and or mistake of the servants of the defendants and the plaintiffs did not discover and could not with reasonable diligence have discovered the said fraud and mistake or the true facts giving rise to plaintiffs’ rights of action herein until on or about 12th September, 1989 when the defendants’ wrote to the plaintiffs and enclosed defendant’s letter of 12th July, 1989 addressed to the Bank of Ireland. In the premises it was contended that by sections 22, 23, 24 and 25 of the Limitation Law, Cap. 89, Laws of Bendel State paragraph 12 of the statement of defence afforded no defence to this action.

At the completion of pleadings an application was brought by Chief Debo Akande (S.A.N.) learned Senior Advocate on behalf of the defendants, for the Bank of Ireland, Dublin; and Kings court Construction Group (Export) Limited, Ireland to be joined as Third Parties in this case, so that the defendants could claim indemnity from them if they were ultimately unsuccessful. and they were duly joined as Third Parties. The Writ of Summons, statement of claim and statement of defence and other relevant processes were ordered to be amended to reflect such joinder. The 3rd parties were to enter appearance within 30 days of the date of service of the 3rd Party Notice on them. The 3rd parties entered appearance but did not file any pleading nor defend the action. In due course the trial commenced with the plaintiffs calling two witnesses to testify, while only one witness testified for the Defendants’ while numerous documentary exhibits were tendered on both sides.

At the end of the day, the learned trial Judge Eruaga, J. found in favour of the plaintiffs as regards the first arm of their claim and entered judgment in their favour in the sum of N12,455,235.00, being the Naira equivalent of $566,250.00 (U.S. Dollars) as already set out above, with N1,000.00 costs in favour of the plaintiffs’. But the sum of N10,093,625.74 claimed by the plaintiff’s as accrued interest on the principal sum up to 19/5/94 was dismissed.

The defendants being aggrieved by the said judgment have appealed to the court originally on five grounds which without their particulars read as follows:-

“1. The learned trial Judge erred in law in giving judgment for the sum of N12,455,235 which is more than the sum of N366,987 paid by the plaintiff/respondent to the defendant at the material time and directly against the principle of restitution brought to the attention of the court.

2. The learned trial Judge erred in law in ignoring the contributory negligence established positively before the court.
3. The learned trial Judge erred in law in failing to consider the issue of estoppel raised and admitted by the plaintiff/respondent.
4. The learned trial Judge erred in law and on the facts in holding that there was negligence on the part of the defendant/appellant.
5. The learned trial Judge erred in law and on the facts by using Exhibits P.K.P.M. & P.L. to found negligence when it was positively shown that the letter did not regularly, actually emanate from the Bank.

Further Grounds of Appeal will be filed on receipt of records of appeal.”

In due course two additional grounds were filed with leave of this court, and the two additional grounds with their particulars read as follows:-

“Additional grounds of Appeal

1. The learned trial Judge mis-directed himself on the facts when he held that the plaintiff has proved a case of negligence entitling it to recover from the defendant.

“by remitting the money on 20/1/82 after the Guarantee period of 31/12/81 without obtaining either a revalidation of the Bankers guarantee on its possession or an extension of its expiry date.”

Particulars of Error

i. The court did not give any consideration to Exhibits PB in reaching its decision.

ii. The court viewed the facts in relation to contract as shown in its reasoning on page 164, lines 25-31, and page 165 lines 1-4.

iii. The plaintiff’s late payment to the defendant on 15/12/81 and subsequent actions were not taken into consideration by the court.

2. The judgment on Negligence is against the weight of evidence.”

On the other hand the plaintiffs were also dissatisfied by the learned trial Judge’s dismissal of their claim for accrued interests on the principal sum. They therefore also cross-appealed, on four grounds which without their particulars read as follows:

1. The learned trial Judge erred in law when he held as follows:

“I am therefore in agreement with learned counsel for defendant that the plaintiff’s claim of interest on the amount based on interest payable on deposit account is misconceived and erroneous”

In the face of overwhelming evidence to the contrary and which evidence justified award of the interest claimed in this action.

2. The learned trial Judge erred in law holding that;

“Since the evidence adduced in support of the claim for the interest showed that the principal sum of $566,250 USD upon which the claim for interest is based was not a deposit both in fact and in law. The plaintiff is not entitled to the interest as claimed.” having regard to the admissions in the pleadings and Exhibit ‘PFF’.

The learned trial Judge misdirected himself on the facts when he held that:

“At no stage was there any evidence by the plaintiff and its witnesses claiming payment of the $566,250 USD in United States Dollars, apart from the issue being raised by the learned counsel for the plaintiff in his address.”

in the face of copious evidence to the contrary.

4. The learned trial Judge erred in law when having held;

“That it is settled law that in an action founded on negligence as in this case, the measure of damages or award is founded on the principle of restitutio in integrum. That is to put plaintiff back by way of an award to his original position as if the loss had never happened.”

proceeded on the wrong principles to award the Naira equivalent of $566,250 USD negligently transmitted to Ireland on the instruction of the plaintiff, outside the guaranteed period.”

In due course briefs of arguments were filed and exchanged, and issues for determination formulated. The defendants who will hereinafter be referred to as the appellants formulated five issues for determination as follows:-

Issues for Determination

1. Whether negligence was established by the plaintiff to warrant the award of N12,455,235.00. (Twelve Million, Four Hundred and Fifty Five thousand, Two hundred and thirty-five naira),
2. Whether if negligence was established, contributory negligence was not established by evidence.
3. Whether estoppel was not established by evidence against respondent/cross-appellant.
4. Whether even if negligence was established, was the correct principle of Restitutio in intergum applied in making the award of N12,455,235.00 (Twelve Million, four hundred and fifty five thousand, two hundred and Thirty-five Naira).
5. Should the award, where negligence was established be made in Naira paid by the respondents to the appellant or the Dollars sent to the Exporters?”

On the other hand the plaintiffs who will hereinafter be referred to as the respondents filed one composite brief embodying both their reply to the main appeal, and the arguments in support of their own cross-appeal.

In respect of the main appeal the respondent adopted the first four issues formulated by the appellants, and then argued that the 5th issue should be amended to read as follows:-

“5. What is the measure of damages, if any, to which the respondent is entitled and whether payment of such damages is to be made in foreign currency or in local currency in Naira.”

In respect of their cross-appeal, for which arguments started at P.21 their brief two questions for determination were formulated as follows:-

“1. Whether the learned trial Judge was justified in refusing to award interest on the initial deposit of $566,250 USD negligently remitted on behalf of the respondent to the Bank of Ireland by the appellant in this case.

2. Whether there was any evidence in support of the respondent’s claim for $566,250 USD at the trial.”

It should also be mentioned that the appellant filed a “reply to cross-appellants brief, in which the arguments raised in the cross-appellant’s brief were replied to.

I shall now proceed to examine and resolve the crucial issues raised in both the appellants brief, respondent’s brief, cross-appellant’s brief and cross-respondent’s briefs.

Since the appellant in this appeal is also the cross-respondent in the cross-appeal, and the respondent is also cross-appellant, it will avoid unnecessary confusion if I continue to refer to the appellant/cross-respondent as “appellant” simpliciter, and the respondent/cross-appellant is referred to simply as “respondent”.

I should also observe that the question of “estoppel” raised under issue No. iii by the appellants was most unclear to me, as it was not stated the type of estoppel intended. Was it “estoppel per rem judicatam” . “estoppel by conduct” or “estoppel by standing by?” In any case, the “particulars” given in the grounds of appeal are the same as those in respect of “contributory negligence” raised under Issue No. ii of the appellants namely that the:-

“The plaintiff/respondent admitted that they assisted in forwarding the money after the alleged expiring date.”

For the above reason the issue of “contributory negligence” will be treated together with the question of “estoppel.”

Having made the above observation, I must now say that the main appeal can be disposed of under three issues, while the cross-appeal can be disposed of under two issues, making five altogether. The issues for the main appeal are as follows:

“(i) Whether the learned trial Judge was right in holding that the appellant herein was guilty of negligence in transmitting respondent’s money overseas after expiration of period of guaranteed.

(ii) If negligence was established whether respondent was not also guilty of contributory negligence.”

(iii) Whether the learned trial Judge was right under doctrine of “restitution in intergrum” to have ordered the payment of N12,455,235 .00 (being the Naira equivalent of $566,250.00 in 1995) to the respondent instead of N366,987,00 which was the Naira equivalent of $566,250.00 instead of in the sum of ?566,250,00 (US Dollars) in 1982, when the money was actually transmitted to Ireland?”

In respect of the cross-appeal, the two issues to be used are as follows:-

(a) “Whether the learned trial Judge was right in dismissing the respondents claim for N10,093,625,74 as accrued interests on $566,250,00 from 1982 to 19/5/94,

(b) Whether the learned trial Judge was right in entering judgment for the respondents in the sum of N12,455,235.00, (being the Naira equivalent of $566,250.00) instead of in the sum of $566,250.00 (US Dollars) which was actually transmitted abroad,”

I shall now proceed to resolve these issues, starting from the main appeal as follows:-

“(1) Whether the learned trial Judge was right in holding that the appellant herein was guilty of negligence in transmitting respondents money overseas after expiration of period of guarantee;”

Under this issue, it was conceded on behalf of the appellants that the documents of Guarantee, Exhibit ‘P.C.’ by its own terms expired on the 31st December, 1981. However, there was another clause in the said Exhibit ‘PC’ which stipulated that the Guarantee will not be effective until receipt of remittance. It was based on this stipulation that the appellant, to the knowledge of the respondent remitted the money to Ireland on 20/1/82, after the Guarantee had purportedly expired, It was therefore argued on behalf of the appellants that it was an absurdity for a document which was to be effective only on receipt of remittance, to have expired over before the remittance had been despatched, It was therefore submitted that the appellants were not guilty of negligence in dispatching the money outside the supposed guarantee period, as the said guarantee was only to take effect on receipt of the remittance.

In reply to the above, the respondent re-stated the facts of their case to correct what they regarded as distortions in the case as stated by the appellants. They emphasized the fact that they merely instructed the appellants as their Bankers to transfer the sum of $566,250 US Dollars to their customers (Kings Court Construction Group Export Limited Ireland, and debit their account with the Naira equivalent. It was the appellants themselves who debited their current account, which then had accredit balance of N370,000.00 with the sum of N366,987.00 as the Naira equivalent of $566,250 USD plus other Bank charges.

Attention was then drawn to the Internal Memo Exhibit PDD and PEE which were tendered by the appellants themselves from their own custody, in which the appellants admitted negligence in that respondent’s money was remitted to Ireland on 20/1/82 instead of latest on 31/12/81, without obtaining either a revalidation of the Bankers Guarantee in their possession or an extension of its expiry date and thereby failed to employ the skill and care expected of them as Bankers.

It was then submitted that whether the Guarantee Exhibit ‘P.C.’ was operative from the date of the Bank of Ireland received the money from the appellants or not, it was the duty of the appellants to have challenged the validity of the letter exhibit (PH’ from the Bank of Ireland declining liability.

From the above premises it was further submitted that the evidence of the negligence of the appellants which the learned trial Judge found adequately proved cannot be faulted. The court was then urged to answer this issue in the affirmative.

The respondents were negligent and they admitted negligence in Exhibits ‘PK’ and ‘PEE’ as found by the learned trial Judge.

I have carefully considered all the arguments canvassed above by the learned senior counsel on both sides, and find that this issue ought not to have been formulated, as the appellants themselves had admitted that by the terms of the Guarantee Exhibit (PC, which was under their own lock and key, the said guarantee expired on 31/12/81. But in spite of this knowledge they transmitted respondents money ($566,250 USD) to Ireland on 20/1/82, i.e., 20 days outside the Guarantee period. And this led to the Bank of Ireland declining liability under the Guarantee.

It may be that there was a clause in the said Exhibit (PC saying that the guarantee was to take effect on the receipt of remittance by the Bank of Ireland. But that could only mean that both the transmission and receipt of the money must be done within the guarantee period.

Even if the appellants are right in their contention that there was some ambiguity in the document Exhibit ‘PC’, it was their duty to have got the ambiguity clarified before remitting respondents’ money. It was their failure to have done this that has now created a loophole for the Bank of Ireland to want to escape liability. In this connection one must refer to the recent case of National Bank of Nigeria Ltd. v. Trans Atlantic Shipping Agency Ltd. (1996) 8 NWLR (Pt.468) 511 at 519-520, where the Court of Appeal, Ibadan Division, Per Mukhtar, J.C.A. in the lead judgment stated as follows:-

“A bank is vicariously liable vide its servant where there has been non-compliance and failure to strictly adhere to the banking regulations and rules relating to the procedure and documents required for the opening of a bank account by a corporate body as such amounts to negligence.”

See: also the case of A.N.T.S. v. Atoloye (1993) 6 NWLR (Pt.298) 233 in which the Court of Appeal, Lagos Division, per Tobi, J.C.A. in the lead judgment gave the essential ingredients of the tort of Negligence to be as follows: at Pp. 246-247.

“In order to succeed in an action in negligence, the plaintiff must prove by the preponderance of evidence or on the balance of probability:-

(a) that the defendant owed him a legal duty of care; and

(b) that the duty was breached; and

(c) that he suffered damages arising from the breach.

(Agbonmaghe Bank Ltd v. C.F.A.O. (1966) 1 All NLR 140: Benson v. Otubor (1975) 3 S.C. 9: Okoli v. Nwagu (1960) SCNLR 48: Duclaud v. Ginoux (1969) 1 All NLR 26; Nigeria Airways Ltd. v. Abe (1988) 4 NWLR (Pt.90) 524; Strahag Construction (Nig.) Ltd v. Ogharekpe (1991) 1 NWLR (Pt.170) 733 referred to.)”

In the instant case, in fairness to the appellants, they did not dispute the presence of any of the above parameters or conditions. All they were saying is that they were misled by a clause in the Document of Guarantee itself.

In view of the authorities and other cases mentioned above. I hold that the learned trial Judge was right in finding the appellants liable in negligence. Issue No. (1) is therefore hereby resolved in favour of the respondents.

Re: Issue (ii)

“Whether. if negligence was established, contributory negligence was not also established by evidence against the respondent.”

The submission of Chief Debo Akande, S.A.N., under this issue was very short, and may be reproduced verbatim as follows:-“Was there any evidence to establish contributory negligence if at all there was negligence. It is our submission that in view of Exhibits ‘PPA’ dated 14/1/82,and Exhibits ‘PZ’ which shows that the plaintiff/respondent was aware of exhibit ‘PC’ and its contents, and Exhibit ‘PBB’, the plaintiff/respondent took part in the remission of the money after 31/12/81, and Exhibit ‘PB’ the Agreement between the plaintiffs and their Exporters dated 25/3/81 and in their possession all along and must be held responsible if there was any negligence) for contributory negligence. See Nigerian Bottling Co. Ltd v. Ngonadi (1985) NWLR (Pt.4) 739; (1985) 5 SC. 317 at 335 Parts 1 & 2”.

In reply to the above Chief C.C. Inhensekhien, S.A.N. the leading counsel for the respondents drew attention to several portions of the records in which the learned trial Judge had considered the question, and came to the following conclusion:-

“On this issue, it is my view and I hold that contributory negligence or any conduct amounting to estoppel has not been established or proved by the defendant, against the plaintiff.”

Learned Senior Counsel for the respondents also referred to the case of Nigeria Bottling Co. Ltd. v’. Ngonadi (supra) heavily relied upon by the learned Senior Advocate for appellants, and pointed to the following observations of the Supreme Court per Oputa, J.S.C. on contributory negligence:-

“To plead contributory negligence is one thing but it is an entirely different thing to establish the contributory negligence thus pleaded by credible evidence. In this case, there was not an iota of evidence to establish any contributory negligence on the part of the plaintiff/respondent. ”

The learned senior advocate for the respondents therefore submitted that in the case in hand there was no iota of evidence of contributory negligence or estoppel against the respondents, and urged the court to resolve this issue in favour of respondents.

I have carefully considered the two arguments canvassed above by the learned senior advocate on both sides, as well as the pleadings and evidence on record, and find that the only fact that could have the semblance of evidence of contributory negligence is what was pointed out by the learned trial Judge himself, namely that the respondents lodged the money with the appellants on 15/12/81, about 14 days to the expiry date of Exhibit ‘PC’, the Guarantee. According to the learned trial Judge, the fact that the money was lodged rather near to the expiry date

“is the more reason why defendants should have obtained from the Bank of Ireland either a revalidation of Exhibit ‘PC or an extension of its expiry date of 31/12/81 before remitting the money on 20/1/82.”

I am in full agreement with him, I should also add that even in our profession, the legal profession, when a client instructs his counsel to appeal against a court decision the counsel does not rush headlong to file the Notice and Grounds of Appeal, without first ascertaining whether the statutory time within which the appeal should be lodged has expired or not. If time had expired, he first applies for extension of time before filing the appeal. A counsel whose appeal is struck out because it was not filed within prescribed time cannot turn round and accuse his client of contributory negligence because filing fees were brought to him late. The counsel was the expert who had the duty of advising his client as a lay man on what the law is. Similarly in the instant case, the bank was the expert, while the respondent was their lay customer. The appellants had a duty of telling the respondents what the conditions stipulated in the Guarantee Exhibit ‘PC, instead of their keeping it under their own lock and key (see the case of N.B.N. Ltd. v. T.A.S.A. (supra) as to the burden of proving contributory negligence, which rests on the defendant).

In view of the foregoing, I also hold that there was no evidence of contributory negligence against the respondents. Issue No. (ii) is therefore hereby resolved in favour of respondents.

Issue No. (iii)

Whether, on the principle of Restitutio in integrum the learned trial Judge was right to have ordered the payment of N12,455,235.00 being the Naira equivalent of $566.250.00 in 1995, to be paid to respondent, instead of N366,987.00 which was the Naira equivalent of $566.250.00 (USD) in 1982, when money was actually transmitted to Ireland.”

This issue is an amalgamation of issues (iv) and (v) originally formulated for the appellants, but which incidentally were later argued together by the learned senior Advocate for the appellants in their brief. The same were also replied to together by the learned senior Advocate for respondents in their brief.

The main arguments canvassed for the appellants under this issue was that even though the summons “misleadingly” made a claim against the defendant/appellant in dollars, and the learned trial Judge repeated it on p.170 lines 29-30 of the records, it was their contention that what was paid to defendant/appellant was Naira equivalent of $566,250.00 (US Dollars), namely N366,987.00 at the time of their instructions. It was their contention therefore that if negligence was still confirmed by this court against the appellants, the correct legal principle applicable was “Restitutio in Integmm”, meaning that the plaintiff was to be put back to his original position as if the loss had never happened. Their complaint in this case was against the award of N12,455.235.00 as against the sum of N366,987.00 lodged by the respondents. The award, in their respectful submission, did not put the respondents back to their original position but put them at the position (date) of judgment and therefore must be wrong, and set aside. It was their further submission that the learned trial Judge placed a wrong interpretation on the decision in UB.A. v. Ibhafidon (1994) 1 NWLR (Pt.318) p.90 to feel free to make an award in foreign currencies. In his view, the decision in Ihhafidon was confined to contractual relationships and not to claims in torts. In conclusion it was respectfully submitted that there was no legal basis for the award, which should be set aside. If negligence was found against them (which they denied) the award should be fixed at N366,987.00 so that the plaintiffs/respondents could be put back to their original position when the transaction took place.

In reply to the above, the learned senior Advocate for the respondent first restated the facts of this case namely that pursuant to a contract with an Irish company for a pre-fabricated Paint Works Factory, the respondent instructed the appellants as their Bankers to remit the sum of $566,250 US dollars to the Irish Company in Ireland and debit respondent’s account. The appellants remitted the said sum of $566,250 US dollars and debited the accounts of respondents to the tune of N366,987.00, being purchase price of $566,250 US dollars plus Bank charges for the remission of the amount to Ireland.

Therefore, on the failure of the said foreign contract, it was the sum of N566,250 US dollars, which was to be refunded by the Irish Company that should be paid to the respondent, and not any amount in Naira spent in purchasing the US dollars. Attention was drawn to the various correspondences set out at p.7 of respondent’s brief, which transpired between the appellants and the Irish Bank or Irish Contractors, to show that at all stages it was the refund of $566,250.00 US dollars that was being demanded and not any other sum in Naira. Reference was thereafter made to the case of UB.A. v. Ihhafidon (1994) 1 NWLR (Pt.318) 90, in which this court held, inter alia at p.122 that:

“It is now settled that the Nigerian courts like their English Counterparts have the power to order specific performance of a contract in dollars or Deutschmarks or any other currency Metronex Nig. v. Griffin & George Ltd. (1991) 1 NWLR (Pt.169) 659; Olaogun Ent. Ltd. v. S.J. and M. (1992) 4 NWLR (Pt.235) 261 referred to)”.

The learned trial Judge in his judgment, placed heavy reliance on this case and on the Supreme Court case of Onwu V. Nka (1996) 7 NWLR (Pt.458) p.1 at 19. However, the learned trial Judge in making the final award, erroneously awarded N12,455,235.00, which he wrongly regarded as:-

“being the naira equivalent of $566,250.00 US Dollars) negligently paid out by the defendant from the account of the plaintiff without valid guarantee and or without effectively contesting the validity of the said guarantee.”

Learned Senior Advocate for respondent then emphasized that the correct award should have been in dollars i.e. $566,250 (US Dollars), but if the Naira equivalent was to be given, it should have been the sum of N45,300,000.00 which was the correct equivalent of $566,250.00 (US dollars) on 19/5/95 (date of judgment) at the rate of N80 to one dollar. He pointed out that the N12,455.00 already awarded was only the equivalent of $155,960.43. Therefore the sum of N32,844,765, representing the balance of $400,559.57 US dollars was still outstanding.

He said this was the substance of their cross-appeal, namely that the correct exchange value of naira on 19/5/95 was not used to arrive at the judgment sum of N12,455,235.00 awarded in favour of the respondent, and that this court will be called upon to rectify the error.

Reverting to the principles of “restitutio in integrum”. which is the subject of this issue, the learned senior counsel submitted that the sum of N45,300,000.00 which was the Naira equivalent on 19th May, 1995 when the judgment was given in this case at the rate of one dollar to N80 would have restored the plaintiff to the original position if the Bank of Ireland had refunded the sum of $566,250 USD negligently remitted to the Bank of Ireland, on behalf of respondents by the appellants.

I have carefully considered all the arguments canvassed above by learned senior counsel on both sides, and find that both counsel as well as the learned trial Judge agreed that the correct measures of damages to be awarded in this case must be “restitutio in intergrum”. Yet there was sharp disagreement between the learned senior counsel as to whether the principle was correctly applied by learned trial Judge or not.

It becomes necessary therefore, by reference to a few decided cases, to consider precisely what is meant by the expression “Restitutio integrum.”

Perhaps a good starting point would be the case of Soyinka v. Inaolaji Builders Ltd. (1991) 2 NWLR (Pt. 177) 21, decided by the Court of Appeal (lbadan Division). In that case the appellant had sued respondent for the value of his chattels accidentally damaged” beyond repairs” through the negligence of respondent. He was awarded the sum of N7,000.00 as the then market price of these properties, on total loss basis. After the appellant had been paid his N7,000.00, he subsequently opposed an application for the damaged exhibits to be released to the respondent, contending that he (the appellant) should be entitled to them. The properties were released to the respondent who had paid their full value to appellant, on total loss basis. It was held that to allow appellant turn round and want to repair the properties for which he had received full payment would amount to double compensation, against which the court will always lean. Kerewi v. Odugbesan (1965) 1 All NLR 95 and Ezeani v. Ejidike (1964) 1 All NLR 402. It was then finally held as follows:-

“In awarding damages on the basis that the chattel of the plaintiff is irreparably damaged by the negligence of the defendant, the plaintiff is only entitled to what is called “Restitutio in integrum” meaning that he (the plaintiff) should recover such sum as will replace him. so far as can be done by compensation in money, in same position as if the loss had not been inflicted on him, subject to the rules as to remoteness of damages” (per Ogwuegbu, J.C.A. (as he then was) in the lead judgment at p,32, paragraphs D-E.)” See: also the case of Cross-lines Ltd v. Thompson (1993) 2 NWLR (Pt.273) 74 where the same principles underlined above were re-stated.

The short of the foregoing is that no one should be made richer or poorer as a result of his misfortune or disaster. He should be restored to the same position he would have been in if the disaster had not occurred. That is why when a man’s vehicle is damaged beyond repairs, he is entitled, under our law, not to the cost of a brand new car to replace it, nor to the purchase price he paid for it several years before, but to what is usually known as the pre-accident value of the vehicle.

It follows from the above that the respondents in this case are to be restored to the same position they would have been in if the Appellants had not negligently remitted their money to the Bank of Ireland on the 20/1/82. The question arises:- What was the position the respondents were in immediately before 20/1/82? The answer clearly is that they were the proud owners of $566,250.00 (US Dollars). Therefore, when they lost that amount through the negligence of the Appellants, it is my respectful view that under the doctrine of “restitutio in integrum” the sum of $566,250.00 (US Dollars) lost through the negligence of the Appellants, should be restored to them, for them to use in purchasing from else where the commodities they wanted to purchase from Ireland. It is on record that the sum of $566,250.00 (US Dollars) was not just sent to Ireland for the fun of it. It was the 15% deposit required for provision or purchase of “Pre-fabricated Paint Works Factory” from an Irish Company known as Kings Court Construction Group Export Limited. Even if the respondents were to be paid the Naira equivalent of $566,250.00 (US Dollars) it has to be at that rate prevailing on the date of exchange as the Banks only change foreign currencies on the current rate. I am unable to agree with the arguments of Chief Debo Akande, that the rate of compensation should be rate applicable in January, 1982 when the Dollars were purchased, because of the huge devaluation that had taken place in the exchange value of the Naira since then. It is common knowledge that in 1982, Naira was stronger than the Dollar. A Peugeot 504 saloon car then cost as little as N9,000.00. But after the introduction of the Structural Adjustment Programme (SAP) in 1989 or thereabouts, the costs of cars and other imported goods went up sharply. And when the Autonomous Foreign Exchange Market was later introduced, matters became worse, with the result that a new Peugeot 504 saloon car now costs about N 1.8 million naira, while a second-hand one now costs an average of between N300,000.00 to N400,000.00. Therefore if a man’s car which was bought brand new at N9,000.00 in 1982 was damaged beyond repairs in 1995 or 1997, the pre-accident value of such car, in my respectful view will be the market value of such a car in 1995 or 1997, which will be between N300,000.00 and N400,000.00, and not the N9,000.00 that was spent in buying it. It is my view therefore that the correct amount necessary to restore the respondents to their pre-January, 1982 position would be the sum of $566,250 (US Dollars) times the current exchange rate, which is still one Dollar to N80.

As for the view expressed by the learned Senior Counsel for the Appellants that”

“the summons “misleadingly” made a claim against the Defendant/Appellant in Dollars, and the learned trial Judge repeats it on page 170 lines 29-30…”

I regret that I cannot buy the view that there was anything ‘misleading’ or erroneous in the summons as expressed, because in the case of UBA v. Ibhafidon (1994) 1 NWLR (Pt.318) 90, decided by this court, which has been cited by learned senior counsel on both sides, we held that Nigerian courts, like their English Counterparts have the power to entertain claims in Dollars. Deutschmarks or in any other foreign currencies in which the parties made their contracts or transactions.

That decision was later followed in the recent case of Salzgitter Stahl GMBH v. Aridi Industries (Nig) Ltd & Anor (1996) 7 NWLR (Pt.459) 192. In that case the facts were similar to our instant case in that the issue for determination was whether ajudgment given in Foreign currency should be executed in local currency at the exchange rate of the Naira applicable on the date of judgment (which was lower) or on the date of execution (which was much higher). We held inter alia as follows:”

As a matter of law, if the claim of a Plaintiff was in a foreign currency, such as Pound-sterling, Dollar or Deutschmark, and the judgment was also given in that foreign currency (which the court has power to do), execution should also be carried out in the said same foreign currency, and it is only as a matter of grace or special dispensation that a judgment debtor can be allowed to pay his foreign debt in local currency. And if that is to be done, it has to be at the rate of exchange applicable on the date of exchange (i.e. at the date on which the execution is sought to be levied.) In the instant case therefore, if as a matter of convenience, the debtor wishes to pay in local currency, with the concurrence of the judgment creditor, the exchange rate must be that available on the date of exchange or conversion. That is so because a Bank or “bureau de change” can only sell or buy foreign currencies at the rate prevailing on the date of exchange. UBA Ltd v. Ibhafidon (1994) 1 NWLR (Pt.318) 90 referred to).”

Other pronouncements were made on the power of court to amend its judgment. This will be touched upon in the last issue for determination in the cross-appeal in this judgment. For now, all I can say is that up till now we have not been told that either Ibhafidon’s case (supra) or that of Salzgitter (supra) has been set aside or reversed by the Supreme Court. I see no reason therefore for altering the position taken by this court in the above two cases.

Issue No. (iii) must therefore be resolved in favour of respondents.

I now go to the cross-appeal. The first issue for determination was:-

“Whether the learned trial Judge was justified in refusing to award interest on the initial deposit of $566,250 USD negligently remitted on behalf of the Respondent to the Bank of Ireland by the Appellant in this case.”

Under this issue three main arguments were advanced on behalf of the Respondents as follows:-

“(a) That in Exhibit ‘PJ1′ which was a letter of demand for the refund of the sum of $566,250 US Dollars written to the Bank of Ireland by the Appellants, the Appellants referred to the sum remitted on behalf of the Respondents as a “deposit”. The operative portion of the said letter was reproduced at p.22 of Respondents’ brief to show that the word “deposit” was used at least three times to describe the said sum of $566,250 US Dollars. Even in Exhibit ‘PC’ the Guarantee documents and in several other documents, such as Exhibits ‘PD’ and ‘PE’, the said down payment of $566,250 USD, was referred to as ‘deposit’.

(b) Also in Exhibit ‘PEF’ another letter of demand written by the appellants to the Bank of Ireland, the Appellants made the following remarks which amounted to an admission that interest was payable on the amount transmitted:-

“Please note that our customers are entitled to interest earnings on this payment (Deposit) from 1982 until date of refund by you/your customer.

(c) Attenlion was also drawn to paragraph 19 of the 7th Amended Statement of claim of the Respondent, in which it was clearly stated inter alia that-

The Plaintiffs will contend at the trial that as long as the Defendants have not repaid the plaintiff as their Customers by failing or refusing to recover from the guarantor’s Bank in Ireland, the amount deposited for onward transmission, remains a deposit with the Union Bank in favour of the Plaintiffs.

As deposit with the Bank, the amount attracts interest at the rates supplied by the Central Bank and Defendants in this case.”

It was then submitted that the above averments in paragraph 19 of Respondents’ statement of claim was not denied by any paragraph of the statement of defence. It was therefore deemed to have been admitted under our law of pleadings. The cases of:-

(i) Ohamhe v. Wemabod Estates (1975) 5 SC 115 or (1977) All NLR 130 at 131.

(ii) Boshali v. Allied Commercial Enterprises Ltd. (1961) All NLR 946 at 947 and

(iii) Koiki v. First Bank of (Nig.) Ltd. (1994) 8 NWLR (Pt.365) p.665 and three others were cited in support.

In response to the above the learned Senior Advocate for the Appellants filed a “Reply to Cross-Appellant’s brief in which attention was drawn, inter alia, to p.64 lines 17-18 of the record of appeal in which the plaintiff had testified as follows:

“My account with the Defendant was a current Account. I know that the money was remitted to the Exporter.”

It was then pointed out that Respondents’ arguments in their Cross-Appellants’ Brief was based on the wrong presumption that the sum of N366,987 .00 provided for remittance was or became a fixed deposit with the Appellant Bank.

It was therefore submitted that the claim of the cross-appellant for N10,093,625.74 was correctly dismissed as misconceived. In conclusion on this issue it was submitted that the judgment of the court on the issue of interest can not be impeached; the arguments of the cross-appellant did not meet the points, and so the appeal should be dismissed.

I have carefully considered the above arguments of learned senior counsel on both sides, and must say that going by the pleadings of the parties, the appellants cannot be said to have seriously contested the question of their liability to pay interests on the money paid by the respondents to them for transmission abroad. For a start they did not deny the averment in paragraph 19 of Respondents statement of claim at the Court below secondly they themselves had written to the Bank of Ireland in their letter Exhibit (PFF) that their customers were entitled to interest earnings on this payment from 1982 until refund. Appellants were therefore estopped from contradicting that contention. What the appellants have been really contesting in this appeal appears to be the rate at which interest should be paid. Their argument really is that since the sum of N366,987.00 used to purchase $566,250 US Dollars in 1982, was taken from Respondents’ Current Account which in the normal Banking practice attracted very little or no interest, they could not be called upon to pay interests at a rate applicable to money in a Deposit Account.

It is my respectful view that even if that contention was valid, and sustained, the learned Trial Judge ought not to have dismissed the claim for accrued interest altogether, but could have used his discretion to award what he considered appropriate in the circumstances. This view is supported by the fact that even the learned trial Judge himself used his discretion to award post-judgment interest, which was not claimed by the Respondents, at the rate of 10% per annum” from the date of this judgment until payment” and nobody has appealed against that award. Apart from the fact that the Rules of Court in Edo State gives the court power to award “post-judgment interest” the payment of interest in the absence of any agreement between the parties, is a mater that a trial Judge could use his discretion to award. See the case of Faagol Instrument Ltd. v. National Bank of Nigeria Ltd. (1993) 1 NWLR (Pt.271) 586, where this court held as follows:”

In the normal banking practice and in consonance with the universal custom of Banking, it is an implied term of overdraft or loan agreement between the bank and the customer that a reasonable interest will be charged on such loan and overdraft where no rate of interest is expressly agreed upon (Union Bank of Nigeria Ltd. v. Sax (Nig.) Ltd (1991) 7 NWLR (Pt.202) 227 and Union Bank of Nigeria Ltd. v. Ozigi (1991) 2 NWLR (Pt.176) 677 referred to and applied.)”

Also instructive is the case of National Bank of Nigeria Ltd. v. Savol West Africa Ltd. (1994) 3 NWLR (Pt.333) 435, where the Court of Appeal, (Lagos Division) Per Uwaifo, JCA. made a number of far reaching pronouncements on Banker/Customer relationship. On the principle guiding the award of interest it was held as follows:-

“In awarding interest under the law Reform (Miscellaneous Provisions) Act, 1934, of England, (and other similar Acts) the overriding principle is that interest should be awarded to the Plaintiff not as compensation for the damage done, but for being kept out of money which ought to have been paid to him.”

On whether a plaintiff need claim interest to be entitled to same, it was held as follows:-

“It is not necessary for a plaintiff to claim interest in his pleadings before the court can award it in deserving cases. But it is desirable to draw attention in the pleadings to the rate of interest desired and where evidence is necessary, to adduce it in support. That will help the Judge in the exercise of his discretion to award what is appropriate. ”

At the end of the day, the Court of Appeal awarded both a prejudgment interest of 13% per annum and a post-judgment interest of 4% per annum from date of judgment until final payment, which the trial court did not award.

In view of the foregoing authorities I have no hesitation in my mind that the learned trial Judge was wrong in refusing to award a pre-judgment interest on the amount awarded in view of the admissions already made by the Appellants in the case. This court will therefore now award the said interest, acting under power conferred on this court under S.16 of the Court of Appeal Act, 1976 as amended by the 1990 Laws of the Federation, which gives this court full jurisdiction to do what the trial court should have done.

The learned trial Judge’s order dismissing Plaintiff’s claim of N10,093,625.74 as accrued interest up to 19/5/94, is hereby set aside. In its place it is hereby ordered that the Defendants/Appellants will pay to the Plaintiffs/Respondents interest on the principal sum of $566,250.00 (US Dollars) at the rate of 10% per annum from January, 1982 up to 19th May, 1995 being the date of Judgment. Thereafter, the interest on judgment debt already awarded by the learned trial Judge at 10% will also become due and payable on the principal sum, plus the accrued interest from date of judgment until final payment.

So, issue No. (1) in the Cross-Appeal is hereby resolved in favour of the Respondent/Cross-Appellant, namely that the learned trial Judge was not justified in refusing to award interest on the initial deposit of $566,250 US Dollars.

RE: ISSUE (2) in the Cross-Appeal

(2) Whether there was any evidence in support of the Respondent’s claim for $566,250 USD at the trial.

Under this issue, the attack of the learned senior counsel for the respondents was targeted at the holding of the learned trial Judge at P.177 of the records that:-

“At no stage was there any evidence by the plaintiff and its witness claiming payment of the $566,250.00 in U.S. Dollars, apart from the issue being raised by learned counsel for the plaintiff in his address.

Based on the above holding the learned trial Judge awarded Judgment in the sum of “N12,455,235.00 being the Naira equivalent of $566,250 (UD Dollars)” instead of:-

“$566,250.00 (US Dollars) equivalent to N12,455,235.00”

It was pointed out that the learned trial Judge was in error when he made the statement complained about because in his testimony PW1 testified under Cross-examination that:-

“the UD dollars stated in Exhibit ‘PB’ is what I am now claiming from the Defendant.”

In conclusion it was submitted that the learned trial Judge having rightly held that the negligence of the Defendant was responsible for the loss to the respondent of the sum of $566,250.00 (USD) could not rightly bend over backwards to say that the sum refundable to the plaintiff is the Naira equivalent of $566,250 (USD) which is now worth N45,300,000 at the present exchange rate of N80.00 to one US Dollar. The court was then urged to allow this cross-appeal.

In reply to the above, it was conceded by learned senior counsel for the Appellants that Plaintiff had stated at P.64 lines 23-24 of the records that he was claiming the US Dollars in Exhibit ‘PB’, as relied upon by the cross-Appellant. Nevertheless the evidence showed the contrary, in the sense that all the evidence related to Naira as held by the trial court. It was also pointed out that even the plaintiff’s claim for interests was based on Naira.

The court was therefore urged to dismiss the Cross-Appeal on all grounds and issues.

I have carefully considered all the arguments canvassed above, and must say, in the first place that to find out what a party’s claim was all about the place to look is not in the evidence, but in the Writ of summons or in the concluding paragraph of the statement of claim, which may supersede the Writ. See the case of F.A. Akinbobola v. Plisson Fisco (Nig.) Ltd. (1991) 1 NWLR (Pt.167) 270, where it was held that:-

“To find out what the cause of action in a claim is, one must look at the writ of summons.”

Therefore, in the instant case, in order to find out whether respondents’ claim was in Dollars or in Naira, the place to look should have been in the last paragraph of the 7th Amended Statement of Claim which superseded all others. There, it was clearly shown that Respondents were claiming the refund of their original deposit in dollars ($566,250.00 US Dollars) and their accrued interest in Naira N10,093,625.74 up to 19/5/94. The learned trial Judge saw this and accurately reproduced it in the introductory paragraph of his judgment at p. 112 of the records. After that the next thing would have been to see whether there was sufficient evidence to support the claim. That is so because under our law, any claim not supported by evidence is deemed abandoned; and any evidence not supported by pleadings goes to no issue, and should be expunged. At the end of the trial, the learned trial Judge did not expunge anything. He found the case of Plaintiffs/Respondents proved, and held as follows:- at P.17 lines 17-21 as follows:

“It is my view therefore that on the authority of U.B.A. v. Ibhafidon (supra) this court is entitled to order the payment of any award in this case in US Dollars, which was the foreign currency purchased and remitted.”

It was completely out of tune therefore for the learned trial Judge to have suddenly turned round at page 177, lines 30-32 of the records to say that he did not see any evidence that Plaintiff was claiming $566,250.00 in US Dollars, even in spite of numerous, documentary evidence and the evidence of Plaintiff himself under cross-examination on the point. The above underlined holding of the learned trial was therefore wrongly held.

Before concluding, I should also refer to the complaint of the learned senior Advocate for the Respondents under this issue that the Naira equivalent of $566,250.00 US Dollars on 19th May, 1995, when judgment was delivered was N45,300,000 at the rate of N80 to one dollar, and not N12,455.235.00 as erroneously stated in the judgment. In other words there was still a balance of N32,844,765.00 payable to the Respondents. But that cannot be done unless the said judgment was amended to show that correct Naira equivalent of $566,250.00 US Dollars on 19/5/95 was N45,300.000.00 and not N12,455,235.00 erroneously awarded. Can this court authorize such an amendment or not? This was one of the questions presented before us in the case of Salzgitter Stahl GMBH v. Aridi Industries (Nig.) v. Ltd. (1996) 7 NWLR (Pt.459) 192, earlier mentioned in this judgment.

In that case the appellant had sued the Respondent in the High Court of Edo State claiming the sum of DM 494,968.49, plus interest at 10%, being the cost price of 400 tons of nail wire sold and delivered to the defendant in 1981. Judgment was ultimately given in favour of the Appellant in the sum of FM 494,968.49 equivalent to N149,086.89 plus interests and other expenses making a total of DM 765,334.00 (Deutschmarks) on 22/5/86. However, the Appellant did not take steps to execute the judgment until sometime in May 1987 when the second Tier Foreign Exchange Market was introduced. In this new Foreign Exchange Market, the value of the Naira which should have been equivalent to MD 765,334 became N338,793.27 instead of N299,052.86. Following disagreement between the learned counsel for Appellant and the Registrar of the High Court as to which rate of exchange to use in executing the judgment, an Originating summons was filed before Amissa, J to resolve the matter, Amissah J. refused to alter the Judgment of Gbemudu J., who delivered the original Judgment as he could not sit on appeal over a judgment of his learned brother of co-ordinate jurisdiction. Appellant then appealed to this court. We held, as has already been mentioned:-

(a) That Nigerian Courts now have power to entertain suits in foreign currencies.

(b) If a claim was in a foreign currency, such as Dollars, Pound starting or in Deutschmarks (DM), judgment must also be given in the said foreign currency.

(c) The said Judgment must also be enforced or executed in the foreign currency unless the Judgment Creditor accepts the money in local currency.

(d) If payment is to be made in local currency, the rate of exchange must be that applicable on the date of execution as a banker or “Bureau de change” can only sell or buy foreign currencies at the rate prevailing on the date of exchange, which could be more or less than that stated in the judgment. It was found necessary that even if a claim was made in a foreign currency the Naira equivalent should always be stated for purposes of assessing court fees. On the power of the Court to amend its judgment and when exercisable, we held as follows:-

“A court of law has inherent power to amend its own judgment to reflect its correct intention when it discovers that the judgment as drawn up does not correctly state what it actually decided and intended. In the instant case what was intended in the judgment entered in favour of the appellant was the payment of the sum of DM 494,968.49 together with the interest thereon claimed by the appellant as the cost price of goods sold and delivered by the Appellant to the Respondent. The parties never joined issues before the lower court over what the exchange rate of Deutschmark in Naira would be. The trial Court therefore has a right to amend any order drawn up in the case to reflect the intention of the Court, which is the payment of the judgment debt in Deutschmark together with the interest awarded thereon Asiyanbi v. Adeniji (1967) 1 All NLR 82; Udeogu v. Okereke (1966-67) 10 ENLR I23 referred to”.

In view of the above, the judgment of the lower court will be amended to reflect what was actually claimed at the trial, namely the sum of $566,250 (US Dollars) together with interest thereon which has been awarded in this court at 10% from 20/1/82 till date of judgment plus the post-judgment interest also awarded the learned trial Judge at 10% per annum from date of judgment till payment.

The applicable exchange rate of the Dollars to the Naira, shall be the rate available on the date of execution, as that was never a disputed point. Issues were never joined as to the applicable exchange rate between the parties at the court below. Issue No.2 of the cross-appeal is therefore hereby resolved in favour of Respondent.

Since all the issues both in the appeal and the cross-appeal have been resolved in favour of the Respondent/Cross-Appellant, the main appeal fails and is hereby dismissed while the Cross-appeal succeeds and is hereby allowed. For the avoidance of doubt judgment is hereby ordered to be entered in favour of the Plaintiff/Respondent in the sum of $566,250 US Dollars, (now equivalent to N45,300.000.00) at the exchange rate of N80 to one U.S. Dolar) being the amount remitted to Ireland by the Defendants/Appellants on behalf of the Plaintiffs/Respondents on 20/1/82, plus interest thereon at 10% per annum from 20/1/82 till date of Judgment and thereafter with post-judgment interest awarded by the learned trial Judge at 10% per annum from date of Judgment until payment.

Cost of this appeal is assessed at Two thousand Naira (N2,000.00) in favour of the Respondent/Cross-Appellant.

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Other Citations: (1997)LCN/0252(CA)