Jessica Trading Co. Ltd Vs Bendel Insurance Co. Ltd. (1993)

LawGlobal-Hub Lead Judgment Report

This is a Motion On Notice by the appellant/applicant praying this Court for –

“(a) Leave to amend the Notice and Grounds of Appeal filed on 27th January, 1989, against the judgment of the Court of Appeal dated 11th November, 1988;

(b) Leave to amend Plaintiffs Writ and pleadings to enable plaintiff claim for his lost 13371 bags of granulated white sugar in the currency of USA dollars in which plaintiff prepaid the cost of his entire cargo of sugar;

(c) leave to argue points not taken in the Courts below;

(d) an order waiving the rules of Court so as to deem as properly filed and served the Additional Appellant Brief now sworn along as Exhibit D herein. being substantiality the same as was filed without leave of Court on 25/11/91.

And for such further and/or other orders as this Honourable Court may deem fit to make in the circumstances.

And further take notice that the applicant will at the hearing of this Motion rely on the Record of Appeal already entered in this Court, and on the Brief in support of this Application.”

The motion is supported by an affidavit of 41 paragraphs sworn to by one Andrew Iyere Wilson, the Managing Director of the plaintiff/appellant/applicant company. The relevant paragraphs therein read as follows-

“4. By a Writ of Summons and a Statement of Claim filed in the Federal High Court on 13th March. and 2nd April, 1984 respectively, plaintiff sued defendant for a Marine Insurance Claim.

9. Plaintiff claimed N146,138.18 re-imbursement as cost of the 13371 bags of his granulated white sugar not found. Additionally, he claimed other sums, including interest for that the loss was not paid at the proper time.

24. It is a feature of this case that the insurance loss has remained unpaid since September 1978, the date of the loss and, even after judgment in the trial court, only N1,000,000 was released to plaintiff, and that reverted to defendant upon the judgment of the Court of Appeal two years later. In the event of this Appeal succeeding, all payments in naira to plaintiff will be that the entire insurance loss is being settled in naira at the devalued rate, particularly the very adverse rate imposed by Government on March 5, 1992.

25. I am advised by Counsel, whom I verily believe, that it is necessary to seek leave of this Honourable Court to plead plaintiffs claim in the foreign currency of USA dollar as this is a non-contentious method of avoiding a determination of the legal question whether plaintiff is held irrevocably bound by Counsel’s erroneous definition of terms in the social science of economics and accounts incorporated in Counsel’s formulation of plaintiff’s pleadings.

25(a) In pleading the cost of Plaintiff’s 13371 bags of granulated white sugar not found, plaintiff’s Counsel had erroneously pleaded the currency of plaintiff’s own accounting instead of the currency of prepayment for the lost sugar.

27. I am advised by Counsel, whom I verily believe, that formulating the pleading in the suit to plead the replacement cost of the loss 13371 bags of imported sugar in naira currency in the circumstance of the C and F transactions in this case (Exhibits E, H, and F) inevitably and necessarily implies pleading the adverse effects of foreign exchange rates (vis-à-vis naira currency) in any arrangement to replace the lost bags.

32. I am advised by Counsel that judgment delivered in naira is neither in the interest of justice itself, nor of justice to the parties, unless the award reflects the violent changes to which the naira has been subjected vis-a-vis the USA dollar currency of the C and F transaction. I believe Counsel.

38. The Notice and Grounds of Appeal as amended are sworn along herewith as Exhibit A.

39. Sworn along also are amendments to pleadings as Exhibits B and C, and the resultant Additional Appellant Brief first filed on 25/11/ 91 and now resubmitted, as Exhibit D.”

Other Citation: (1993) LCN/2587(SC)