Neka B.V. Manufacturing Co. Ltd. Vs African Continental Bank Ltd (2004)

LAWGLOBAL HUB Lead Judgment Report

C. PATS ACHOLONU, JSC.

The Appellants as Plaintiffs had obtained a loan from the Nigerian Building Society by using the title deeds of two of their Directors as collateral. The Respondents as defendants redeemed the loan facility hitherto granted by the Nigerian Building Society and retained the title deeds formerly in the possession of the Nigerian Building Society as security. The Appellants claim that later they paid their indebtedness to the Respondents and demanded the return of the title deeds of their Directors which were being detained as claimed by the Appellants. From time to time the Appellants demanded the return of the documents from the Respondents as they stated that they had good offers for a loan from the Union Bank and other Financial Institutions. The Appellants said that when it appeared that the Respondents were unable to trace the whereabouts of the documents after what the latter claimed was an extensive search, the Respondents “pleaded” with the Appellants to renew their application with them instead of the Union Bank or any other Financial Institution for that matter. This advice was based on the assertion by the Appellants that they obtained good and reasonable business propositions from some foreign Companies and they needed facility from a Bank to be in a position to engage in those business concerns, but that the failure or refusal of the Respondents to release these documents to them robbed them of the gains or profits they would or might have realized had the proposed transactions succeeded. The Respondents in rejecting the claim of the Appellants stated that though the documents were missing, and not being detained, but that after fruitless searches, they obtained or procured the certified copies of those documents which they believed that the Appellants could use for the interim period. But, instead of accepting them, the Appellants refused, and rather asked for the duplicate of the certified true copies. They equally denied advising the Directors of the Appellants to proceed to overseas tour for business transactions, or were aware that the Appellants had applied for a loan facility from the Union Bank and stated that they would have been prepared to give a bond or a guarantee should that have been requested. After the hearing in the High Court, judgment was in the main given to the Appellants although the claim under the head of raw materials was refused. The Respondents being the losing party appealed to the Court of Appeal while the Appellants cross-appealed. The appeal was largely successful. In its Judgment the Court of Appeal held as follows: “The amount of N6,000.00 awarded in respect of general damages is allowed to stand, since there was neither an appeal nor cross-appeal against it. But the appeal against the special damages awarded succeeds and is hereby allowed, while the cross-appeal against same fails and is hereby dismissed. For the avoidance of doubt the amount of N1,963,465.50 awarded in favour of Respondents as special damages is hereby set aside, as there was no evidence to support it, while the general damages of N6,000.00 is hereby affirmed”. Piqued no doubt by this turn of events, the Appellants appealed to this Court and filed 5 grounds notice of Appeal from which they distilled four(4) issues for determination. They are as set down below.

Whether the learned Justices of the Court of Appeal were right in law when they held that in the absence of any evidence to show that certain monies were actually paid to the Respondents by the Appellant for transmission to the European experts in 1982 there can be no claim for special damage based on the foreign exchange differentials in the value of the Naira.

Whether the learned Justices of the Court of Appeal were right in law when they held that the evidence as given by P.W. 4 relating to differentials in the cost of importation of the goods in 1982 and 1987 and tendering of the proforma invoices does not amount to sufficient proof of those arm of special damages.

Whether the learned Justices of the Court of Appeal were right when they held that there was no evidence whatsoever as to what the estimated income and profit would be and therefore the special damages were not strictly proved by the Appellant.

Whether the learned Justices of the Court of Appeal adequately considered the cross-appeal of the Appellant before dismissing same.

It is noticeable that the general characteristic or nature of the issues formulated is their ungainly verbosity, id est, lacking in precision and clarity. Besides, those to be determined seem repetitive of each other thereby robbing them of the refined or exquisite taste in prose they should ordinarily possess.

On the other hand, the Respondents framed only one issue which I hereby set down and which runs thus; “Whether on the pleadings and evidence there is a legal basis for the award of special damages or in the alternative whether the (Plaintiff) Appellant discharged the burden of proof required to succeed in its claim for special damages”.

After I have carefully studied the case file, and dutifully considered the briefs filed, I am convinced that strictly speaking there is only one issue and that is as formulated by the Respondents. It is not in all occasions that a Court must inevitably accept the issues framed by the appellant as though they are immutable particularly when the issues formulated by the Respondent address the points in consideration or in controversy much more squarely. Indeed the Court may decide in an appropriate case to suo-motu frame issues which though do not and ought not in any way depart from the contents or purport and ramifications of the issues already framed by the parties, and distilled from the grounds of appeal, but are much more succinct, precise and readily understandable. Thus in Lebile V. Registered Trustees C & S (2003) 2 SCM, 39; (2003) 2 N.W.L.R.(Pt. 804) 399 at 424 Uwaifo JSC said; “As to issue 5, what the court below did was to summarise what it found to have survived out of the six issues raised by the Plaintiff, and then considered them under two issues which it framed from those other issues the way it understood them to connote. There is nothing improper about that so long as the summary was reasonably reflective of the issues in question as they relate to the grounds of appeal”.

See also Fabiyi V. Adeniji (2000) 6 N.W.L.R. Pt. 662) 532 at 546; Oloba V. Akereja (1988) 2 N.S.C.C. 120. Even when the appellate Court is of the view that the issues formulated by both sides do not quite reflect the questions that would ordinarily be distilled from the grounds of Appeal, it may on its own formulate new issues based on the grounds of Appeal but care should be taken that the new issues formulated by the Court are brought to the attention of the parties for any possible objection. In that way no party will complain of unfair hearing.

In the Appellants reply brief no new issue was raised but they have sought to put more teeth and vigour in their original brief and whittle down the tenor of the Respondents brief.

The appellants’ Counsel had submitted in his brief that what calls for immediate resolution is this; if the action is founded on negligence as opposed to being in detinue whether special damages if proved could be awarded? Damages in tort is a compensation for loss sustained arising out of the act or omission of a defendant. It is trite law that where the claimant specifically alleges that he suffered special damages he must per force prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognizable, the loss or damages he has suffered so that the opposing party and the Court as the umpire would readily see and appreciate the nature of the special damages suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified. It should not rest on a puerile conception or notion which would give rise to speculation, approximation or estimate or such like fractions. Now part of the evidence of P.W. I runs thus;

“The Union Bank did not give us the loan as we failed to supply the title documents and the defendant refused to give us a bond or indemnify us as to the lost documents. As a result we have suffered a lot of loss and damages. I am asking for the claim as per paragraph 27 of the statement of claim. The Accountant will give account of the special damages”

In his evidence Gregory Obem Omokivie P.W. 4 who is the accountant testified as follows:-