Echo Enterprises Limited V. Standard Bank of Nigeria Limited & Anor (1988)
LawGlobal-Hub Lead Judgment Report
SAMSON ODEMWINGIE UWAIFO, J.C.A.
The two main issues which I have found relevant for consideration in this appeal are: (a) Whether the business transactions of the plaintiffs with an overseas company known as Lonrho Exports Limited (Lonrho) were cancelled owing to delay by the second defendant to take action for some money to be remitted to Lonrho on behalf of the plaintiffs. (b) Whether the plaintiffs suffered loss thereby. It was also canvassed whether the cause of action relied on by the plaintiffs could be founded on breach of contract as well as the tort of negligence or in the alternative.
I wish to remark that in none of the Briefs of Argument filed were any issues for determination raised. There is need to always comply with the rules of Brief writing in order that relevant issues may be considered as a guide: see Anyaoke v Adi (1986) 3 N.W.L.R. (Pt.31) 731 S.C.; Eze v. RePublic (1987) 1 N.W.L.R. (Pt.51) 506 S.C.; Engineering Enterprise v Attorney-General Kaduna (1987) 2 N.W.L.R. (Pt. 57) 381 S.C.; Attorney-General Anambra v Onuselogu Enterprises Ltd (1987) 4 N.W.L.R. (Pt. 66) 547 CA.
The action was tried at the Enugu High Court presided over by P. K. Nwokedi, J. who on 25 May, 1979 dismissed the claim against the first defendant and also in the main against the second defendant except that he held the second defendant liable to refund to the plaintiffs the sum of N276.67 which formed an aspect of the claim.
The claim against the defendants jointly and severally was for the sum of N50,000.00 damages set out as follows:
(a) N13,811.89 special damages made up of
(i) cost of air ticket from Enugu-London-New York and back N920.00
(ii) Accommodation and feeding for 3 weeks in London and New York N735.00
(iii) Loss of cancelled orders N11,880.22
(iv) Money paid to first defendant under duress and over and above agreed commission N276.67
(b) General damages N36,188.11
(c) In the alternative the said sum of N50,000.00 as damages for negligence.
It appears the plaintiffs, in simple description, are principally canvassing agents who earned commission upon successful orders they were able to place with Lonrho for specified goods on behalf of prospective customers, in this country. The plaintiffs prefer to call the business Agency for Confirming Business or just Confirming Agency. They claim therefore to be traders, importers, exporters and confirming agents with their business offices at 171 Zik Avenue, Uwani, Enugu. The commission is said to be 5% of the invoiced value of any such order. The goods in respect of which this action arose were sardines known as “Queen of the Coast” ordered from Lonrho in November, 1976. It does not seem they were ordered on behalf of any customer or prospective buyer, or at any rate, there is no evidence as to this. The initial value of the goods was N72,000.00 (US$115,000.00 dollars). The plaintiffs paid the sum of N74,028.00 by bank draft to the second defendant to cover the invoiced value which included bank commission and other charges of N2,028.00. There was delay on the part of the second defendant as found by the Judge to remit the money to Lonrho.
The learned trial Judge carefully considered the facts of the case and the cause of delay. He then held:
“I am therefore satisfied that the delay in remitting the plaintiffs’ money to Lonrho before 15th February, 1977, when the plaintiffs alleged their orders were cancelled, should be laid squarely at the door steps of the second defendant.”
The second defendant has not appealed against that finding and I think the conclusion reached by the Judge was quite justified.
The plaintiffs however claim that because of that delay, Lonrho cancelled all the orders they placed with them. They allege that as at 6 January, 1977 the total value of the orders stood at ?197,427.57 sterling or N230,963.46 from which they expected 5% commission amounting to ?9,471.37 sterling or N11 ,080.22. These orders obviously included the one for the “Queen of the Coast” sardines. It was pleaded by the plaintiffs in the statement of claim that the orders were cancelled by Lonrho by a telex of 14 February, 1977 which document they said they would found upon at the trial. But at the trial no such telex was tendered. It was said to have been misplaced although that fact was not pleaded. However, oral evidence of a sort (the circumstances of which the Judge said were unsatisfactory and that the said oral evidence had no probative value) was relied on. In the end the Judge held that there was no evidence that the orders were cancelled.
The learned Judge gave reasons for his views. First, he said that the fact of the loss of such crucial telex not having been pleaded, oral evidence of it should not be countenanced in the circumstances of the case. But in case he was wrong, he considered the substance of the evidence tendered on the following available facts: (1) Throughout the evidence of p.w.1 (Benedict Odinamadu, the Chairman and joint Managing Director of the plaintiff company) he never testified to any telex received on 15 February, 1977 or thereafter even though he said that the order was cancelled about 14 February, 1977. (2) A witness, p.w.3, Barnabas Obisike who is an accounts, clerk and telex operator in Zuloh Services Nigeria Limited (telex company) was called to state that he received the telex message for the plaintiffs from Lonrho on 15 February, 1977. He said the message was duly registered in his company’s telex register but the register was not tendered nor did he testify as to the contents of the alleged message. (3) The said p.w.3 alleged that he communicated the contents of the telex message to p.w.1 by telephone, but p.w.1 said nothing of the sort in his evidence. There is no evidence that p.w.3 later forwarded the telex to p.w.1. (4) But p.w.4, David Chukwuemeka Akwuba, a legal practitioner in the firm of Messrs Okunna Akwuba and Associates, said he used the telex message in preparing the statement of claim in this case but that the telex was thereafter misplaced by a clerk in the office whose whereabouts could not now be traced. But as to who gave him (p.w.4) the telex, there is no clue. One may humorously remark here that this telex message story should be told to the marines. The learned Judge rightly, in my view, placed no reliance on it.
With the state of the evidence led, it was not established that there was such a telex. The question therefore of invoking Section 96(1)(c) of the Evidence Act that the original had been lost and that all possible search had been made for it could hardly arise as a condition for giving oral evidence of its contents. Besides, at the time the case went to trial, if it is true that the telex had been misplaced, it became obvious that the plaintiffs could not found on the telex document itself. In which case paragraph 28 of the statement of claim was incapable of being achieved as far as the telex was concerned; in other words, documentary evidence could not be adduced. The plaintiffs knew this at all material times. The information about its loss became a material fact on a crucial issue which should have been pleaded to put the defendants on notice that the telex message would be established other than by the document itself. The need to plead a particular fact at any given time depends on the part evidence relating to it is bound to play on a vital aspect of a case. In this particular case it was whether the orders were cancelled. The telex which was the primary evidence pleaded on this point was said to be lost. The fact that the telex was lost became thereby a matter for pleadings. But how it got lost or who misplaced it would not need to be pleaded as that would be a matter of evidence.
In their grounds of appeal the plaintiffs complain: (a) That the judgment is against the weight of evidence. I do not see any substance in this as the evidence was scrupulously considered and evaluated, the right inferences drawn and conclusions reached. In such a situation an appellate court will not interfere or disturb the findings of the trial court: see Akinloye v. Eyiyola (1968) N.M.L.R. 92 at 95; Omoregbe v Edo (1971) 1 All N.L.R. 282 at 289; Fashanu v. Adekoya (1974) 1 All N.L.R. 35 at 41: Christopher Okolo v. Eunice Uzoka (1978) 4 S. C. 77 at 86; Etowa Enag & Ors v Fedelis Ikor Adu (1981) 11-12 S.C. 25 at 38-40.(b) That the contents of a document can be proved by oral evidence by someone who has seen the document as provided in Section 94(e) of the Evidence Act. That is not in dispute. But what is misunderstood and to which the Judge gave full consideration is when and how this can be done upon the state of the pleadings. I have already expressed my views on this above. (c) That the second defendant having been found negligent, the plaintiffs were entitled to damages. I think what the Judge decided was that although the second defendant was negligent in delaying to remit the invoiced value of the sardines, that did not occasion any damage to the plaintiffs from the facts. He was certainly right.
A negligent act is not actionable per se. The mere fact that a person is in breach of a duty of care does not provide a cause of action to the person to whom the duty is owed unless damage occurs as a result. The damage used to be limited to injury to the person or property of another: see Heaven v. Pender (1883) 11 Q.B.D. 503 at 509. But now not only has the concept of duty of care been redefined to include sufficient relationship of proximity or neighbourhood, the scope of damage now includes economic loss: see Donoghue v Stevenson (1932) A.C. 562 at 580 and Anns v Merton London Borough Council (1978) A. C. 728 at 751-752 for the proximity or neighbourhood principle; and Hedley Byrne & Co. Ltd v Heller & Partners Ltd. (1964) A. C. 465 for careless information given by a bank to inquiries.
Even with these extensions, the plaintiffs here have not shown that they suffered any loss. As the Judge pointed out, their letter, Exh. 13, written a month after the alleged cancellation of orders by Lonrho to the first defendant and copied to the second defendant and Lonrho, belies their claim that their business with Lonrho had on 14 February, 1977 been ruined. Part of the letter reads, “to avoid ruining our business transaction with LONRHO v. EXPORTS LIMITED, we hereby offer to pay to you the balance of N276.67 which you are demanding from the Barclays Bank of Nigeria Limited, Okpara Avenue.” If it was true that the business had been ruined, there would have been no use to attempt to avoid that consequence.
Before ending this judgment, I intend to draw attention to one fact. Nothing seems to have been mentioned about the money remitted to Lonrho for the sardines. If the orders were cancelled because of the alleged delay, what then happened to that money? There is nothing to show that the goods were supplied. Why should only the 5% commission on the invoiced value be built into the claim made by the plaintiffs as part of the loss sustained arising from the cancelled orders and the money deposited excluded? If the goods were not supplied and the money was not repatriated, why did the defendant not claim for it or at least aver that they have lost that money? Or even if the money was repatriated, the bank charges and commission of N2,068.00 would not. That would be a loss to the plaintiffs. They should have been entitled to claim for that. It seems clear to me that the orders were not cancelled and the plaintiffs suffered no damages.
I am satisfied that the judgment of the lower court was right and that the claim was properly dismissed to the extent it was. This appeal therefore fails as it lacks merit. I award costs of N200.00 to the first defendant/respondent and N150.00 to the second defendant/respondent against the plaintiffs/appellants.
Other Citations: (1988) LCN/0057(CA)
