New Nigerian Bank Plc. V. Denclag Limited & Anor (2004)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A. 

This is appeal against the decision of Plateau State High Court of Justice delivered on the 22nd day of October, 1998. The respondents herein were the plaintiffs in the court below while the appellant was the defendant thereat. By writ of summons issued on the 6th June, 1995, the plaintiffs sued the defendant at the lower court. Pleadings were ordered filed and exchanged by parties. With leave of court, parties amended their pleadings. In an amended statement of claim filed with leave of the trial court, the plaintiffs claimed the under-mentioned reliefs against the defendant.

(a) A declaration that the defendant inexplicably caused an undue delay in the remittance of foreign exchange to the plaintiffs’9191 overseas suppliers, namely Sartra International Limited towards the procurement of hospital equipment under and by virtue of tender agreement dated 16/9/1987 as well as mandates to deduct Bauchi State share of federal allocation at source, thereby causing short fall or balance of N616,019.36 which the defendant is obliged to pay back to the plaintiffs.

(b) A mandatory order compelling the defendant to pay the said sum of ?616,019.36 to the plaintiffs or its naira equivalent at the rate of N130 to 1 pound, that is to say, N80,082,516 being money due and payable to the plaintiffs as the differential short fall and or special damages on the hospital equipment procured from Sartra International Limited.

(c) N4,917,484.00 as general and exemplary damages for defendant’s gains and palpable delay in remitting currency as well as inconveniences caused the plaintiffs.

(d) Cost of the action.

The defendant on its part, after denying all the claims by the plaintiffs made counter-claims as follows:

(1) The sum of N3,929,226 made-up of N3,065,000, being money credited to the instructional department for the purchase of hospital equipment but unutilized and withheld by the 1st plaintiff/respondent and

(2) N864,226.67 paid into account of the 1st plaintiff/respondent as excess/unutilized times on letters of credit No: HO/JO/LC/40/90.

The plaintiffs as cross-defendants filed reply to statement of defence, denying the counter-claim as well as defence to counter-claim.

The facts of the case are briefly summarized below:-

The plaintiffs are customers of the defendant, a company engaged in banking business. Sometime in 1987, the plaintiffs/respondents won a contract for the supply of hospital equipment to the Bauchi State Ministry of Health and the Government of Bauchi State undertook to pay for the job. The Bauchi State Government approached the respondents for loan and the latter, especially the 2nd plaintiff/respondent introduced the defendant/appellant bank to Bauchi State Government. An agreement was executed to the tune of One million, four hundred and seventy-six thousand, seven hundred and seventy-seven naira, ninety-four kobo (N 1,476,777.94). By clause 14(a) and (c) of the agreement, the defendant/appellant bank was made the financial institution from which the Bauchi State Government was to take loan to finance the contract in consideration of which a down payment of N1 million was to be made to the defendant/appellant which said sum was duly paid to the defendant. Also, under clause 14(d) of the agreement, the defendant was to make all payments due to the contractors, (the 1st plaintiff). By this agreement, a contractual relationship was created between the defendant/appellant and the two plaintiffs/respondents.

In pursuance of this arrangement, the defendant was to open letters of credit in favour of the plaintiffs under which it was to promptly remit foreign exchange to the plaintiffs’9191 overseas suppliers, namely Sartra International Ltd. It became apparent that the appellant failed to open the letters of credit timeously, hence, the delay on its part in remitting the amount. Due to the delay in transferring foreign exchange to Sartra International Limited, there was a short fall of ?616,019.36 being the outstanding payment in respect of the hospital equipment to the respondents/plaintiffs for onward delivery to Ministry of Health, Bauchi State. When hearing commenced in earnest and in the course of the trial, the plaintiff called some witnesses and a motion filed by the plaintiff for accelerated hearing was granted. Series of delay were caused by both parties especially the defence. In the end, the defendants/appellants did not lead evidence, and despite the order of accelerated hearing, the defendant/appellant did not defend the suit. After several adjournments and the hearing of interlocutory applications, the defendant/appellant refused to defend the case or to prove its counterclaim. In the end, the court entered its judgment in favour of the plaintiff/respondents and dismissed the counterclaims.

Aggrieved by the judgment of the lower court, the appellant appealed to this court. In keeping with the rules of this court in which parties filed and exchanged their briefs of argument, the appellant herein filed its brief of argument. Seven issues for the determination of the appeal were identified and distilled from fourteen grounds of appeal it filed vide its notice and grounds of appeal filed on 23/10/98. The appellant also filed an appellant’s reply brief on 23/5/2000.

The respondents on the other hand filed their brief of argument on 18/4/2002 wherein they identified three issues for determination. The brief filed by the respondents however incorporated a preliminary objection which I intend to consider later before dealing with the appeal, if need be.

On 14/1/2004, this appeal was set down for hearing. Before the appeal was taken, the learned senior counsel for the respondents drew this court’s attention to two motions he filed on 24/9/2003 and 14/1/2004 and sought for this court’s leave to argue them before the appeal was heard. With the consent of the learned senior counsel for the appellant, Chief Debo Akande, SAN, the court agreed to take the two motions together and both motions were taken together before the parties argued the appeal.

The first motion dated 24th of September, 2003 and filed on the same date contained the following reliefs:-

1. Striking out this appeal for being incompetent or in the alternative.
2. An order striking out the briefs of arguments dated 23rd March, 2000 and filed by the appellant.
3. And upon granting 2 above.

An order dismissing the appeal.

The grounds on which the application is predicated are as follows:

(a) The notice of appeal dated 23rd day of October, 1998 was purportedly filed by one ‘Ibrahim Hamman and Co.’

(b) There is no such legal practitioner as ‘Ibrahim Hamman and Co.’ registered at the Supreme Court of Nigeria to practice in Nigeria.

(c) The issue of the propriety of the notice of appeal was raised earlier in the respondents brief of argument as a result of which appellant was granted leave to change the last page of the notice of appeal as filed in the lower court.

The appellant’s change of the record of proceedings has not diminished the impropriety of the notice of appeal. The motion was supported by an affidavit containing 24 paragraphs deposed to by one Agu Ikenna Victor. Also annexed to it are three exhibits marked as OBA1-3.

While arguing the motion, Mr. L. O. Fagbemi, SAN, after relying on all the paragraphs contained in his affidavit supporting the motion and the exhibits annexed thereto submitted that only last page of the amended notice of appeal was removed and the brief of argument filed by the appellant predates the notice of appeal which was dated on 23/4/2000 and filed on 25/4/2000. He argued that the appellant’s brief of argument is dated 23/3/2000. He submitted that the latter (i.e., the appellant’s brief of argument) existed before the notice of appeal. He said as at that date, Chief Debo Akande, SAN was not yet in the case. He further submitted that in the absence of a motion or application to amend the brief of argument it can not be said that any brief exists. He urged that his prayers in the application be granted and the appeal be dismissed.

In his response to the learned appellant’s counsel’s submission, Chief Debo Akande, SAN of counsel to the respondent/appellant submitted that his application to change the last page of the notice of appeal was granted by this court on 25/4/2002 and as such, that order back-dates and covers the brief he earlier filed. He cited and referred to the case of Nigerian Airways v. Gbajumo (1992) 5 NWLR (Pt. 244) 735 at 739. He said the principle in the above cited decided authority applies to the notice of appeal as it dates back too.

According to the learned silk, the date on the new notice of appeal was 23/4/2000 while the order of the court was effective from 25/4/2000. The relevant date therefore is the date of filing the new last page as the error can not wipe off the order made. See Dr. Odje v. Okonjo (1985) 10 SC 267 where the Supreme Court held that once order for amendment was in no way prejudicial to a party, the court must grant it. See also Cropper v. Smith 26 CLD 70 at 710. He concluded his submission on this motion by arguing that on the applicant counsel’s submission, that the notice of appeal now amended can not cover the brief is false and untenable, since fairness is the bedrock of justice. He urged this court to refuse the application and dismiss it.

It is clear from the facts contained in the affidavit supporting this motion that the notice of appeal filed on this was issued, signed and filed on 23/10/98 by a firm of ‘Ibrahim Hamman and Co.’ A brief of argument was also filed by the appellant based on the said notice of appeal. It is a fact that the solicitors of the applicant/respondent raised a preliminary objection challenging the validity of the said notice of appeal filed on 23/10/2003. The respondent, sometimes through its counsel, Chief Debo Akande, SAN, sought leave of this court to change the last page of the notice of appeal earlier issued, signed, and filed by Ibrahim Hamman and Co. by substituting his name with that of the former. It is clear on the face of the last page replaced by the learned appellant’s counsel that the new page is dated 23/4/2002, whereas, the leave was granted on 25/4/2002. That is to say, two days before the leave was granted. It is also a fact that the present learned senior counsel for the appellant/respondent, was not a counsel to the appellant at the trial court and that as at the time the notice of appeal was filed in this case on 23/10/98, the said learned senior counsel was not briefed by the respondent/appellant to handle its case.

From these pieces of facts highlighted above, it is clear that Ibrahim Hamman and Co. is not competent to issue the notice of appeal since the said firm that signed and issued it is not a registered legal practitioner who is competent to issue a notice of appeal. See section 2(1) of Legal Practitioners Act, 1990, LFN. See also section 24 of the same Act which defines a ‘legal practitioner’. Having not been issued by a registered legal practitioner, the original notice of appeal, signed, issued and filed by the said firm is incompetent, invalid and null and void since it was issued by person not authorized by law to issue it. The said notice of appeal is also incurably defective.

Again, as highlighted above, the learned Senior Advocate applied to this court earlier to substitute the last page of the original notice of appeal with a new one, which he duly signed and dated 23/4/2002 (see exhibit OBA 3, attached to the motion). But another strange thing that can be observed is that the order of this court which gave him the leave to replace the last page of the original notice was granted on the 25th of April, 2002 (see exhibit OBA 2 annexed to the motion). By this, it would appear that the replacement or the purported amendment was made even before leave for the amendment of replacement was granted by this court. Moreso, the appellant had already filed its brief of argument in the appeal on 23/3/2000. From whichever angle one looks at this scenario, the only conclusion that can be drawn is that the brief of argument predates the notice of appeal upon which it is supposed to be based.

As I said earlier, the original notice of appeal dated 23/10/1998 issued, filed and signed by the firm of Ibrahim Hamman and Co. is fundamentally defective, having not been issued and signed by a legal practitioner. Where a notice of appeal is fundamentally defective, there is no foundation for the appeal and therefore, there is no appeal before the court. The appeal then collapsed for being devoid of necessary foundation. Having not been issued by a competent authority, the appeal becomes incompetent and with defective notice of appeal, the appeal is not predicated on a valid notice. See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; NBN v. NET (1986) 3 NWLR (Pt. 31) 667; Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267; Nwaeze v. Eze (1999) 3 NWLR (Pt. 595) 410 at 418.

The learned Senior Advocate of Nigeria representing the respondent/appellant referred to his application which this court granted for him to replace the last page and argued that the date of the new page should cover or apply to the brief he filed. He as well relied on the case of Nigerian Airways v. Gbajumo (supra). I think the issue involved in this appeal is not an issue of amendment of process or notice of appeal. The original notice of appeal dated 23/10/98 is defective ab initio. No amount of amendment will cure it. Being fundamentally defective therefore, it can not be amended. It is totally incompetent and does not more or less exist at all, so the authorities cited and relied on by the learned silk are of no moment. The result of all I have said above is that there is merit in the first application. The application succeeds and the first prayer therein is hereby granted. The appeal is incompetent and is accordingly struck out.

The second motion dated and filed on the 14th day of January, 2004 and taken by this court on the same day. The applicant is seeking the following reliefs:

(1) An order striking out this appeal or otherwise strike out and discountenance grounds 7, 8 and 9 of the grounds of appeal filed by appellant together with associate issue 5 on pages 28 to 33 of the appellant’s brief of argument formulated and argued by the appellant in its brief of argument filed in this case.

The grounds upon which this application was predicated are listed in the motion paper. They include the following:-

(1) The validity of the decision of the High Court refusing the appellant/respondent adjournment has been tested in appeal No. CA/J/210/98 by the appellant/respondent.

(2) This Honourable Court dismissed the appellant’s appeal on Tuesday, 13th January, 2004.

(3) The parties in the aforesaid appeal are the same, and

(4) The issue is being repeated in the present appeal.

While presenting oral arguments on this application, Mr. Fagbemi, SAN, counsel to the applicant/respondent submitted that grounds 7, 8 and 9 contained in the notice of appeal and the issues formulated on them had been litigated upon by this court in appeal No. CA/J/210/98 which this court dismissed on 13/1/2004. The learned counsel referred to and relied on the exhibits he annexed to the motion which included the certified true copy of the proceedings of this court of 13/1/2004, wherein interlocutory appeal No. CA/J/210/98 was dismissed by this court for want of diligent prosecution. The learned counsel for the applicant further submitted that even though a party can take an interlocutory and substantive appeals together, but where he chose to do it separately he should be ready to agree with the consequences. See Okwarayia v. Udogu (Unreported) appeal No.CA/PH/EPT/225/03 dated 27/11/03; UBA Plc. v. Michael Ajileye (1999) 13 NWLR (Pt. 633) 116 at 123. The learned counsel also referred to his submission of the issues raised on the said grounds of appeal in the respondent brief of argument.

Replying on the applicant’s counsel’s submission, Chief Debo Akande, SAN of counsel to the respondent/appellant submitted that by the provisions of Order 6 rules 2, 3, 9(5) of Court of Appeal Rules, compliance must be made to the provisions of rule 10 of Order 6 of the same Rules. He argued that the appeal No. CA/J/210/98 was not decided on the merit since there was no compliance with the provisions of Order 6 rule 10 of Court of Appeal Rules, 2002. He said for it to be binding, it must be dismissal on the merit. He cited Ibenye v. Ugwu (1998) 11 NWLR (Pt. 574) 372 at 386; Usman v. Umaru Kusfa Umomorukusfa (1997) 1 NWLR (Pt. 483) 525 at 533 b-d. The learned counsel further submitted that it would not be proper to strike out the said grounds of appeal as it would amount to denial of fair hearing. He further submitted that the case of Okwarayia cited and relied on by the applicant’s counsel is not relevant as it relates to election petition. He said the respondent applicant did not show that they will be prejudiced or over-reached if the grounds are allowed. He urged this court to refuse the application too.

By way of further reply, the learned counsel for the applicant submitted that his clients will be prejudiced as the issue they raised relates to jurisdiction which can not be assumed by consent. He also stated that the issue of hearing on the merit before a case dismissed becomes binding is wrong. This is because where the law says it would be dismissed and it is so dismissed, then it becomes binding and the hearing on the merit raised does not arise.

It is not in dispute that grounds of appeal Nos. 7, 8 and 9 pertain to interlocutory matters and the respondent/appellant appealed against them vide its appeal No.CA/J/210/98. This same appeal came up for hearing in this court and was dismissed for want of prosecution and because briefs were not filed by the present respondent/appellant. (See exh. B. annexed to the motion which is the certified record of proceedings of this court of 13/1/2004). The respondent, having chosen to file that appeal separate from substantive appeal, it should be ready to face any consequence. Since the appeal by the respondent/appellant in appeal No:CA/J/210/98 has been dismissed, it would not be proper for this same court to hear any appeal pertaining to those grounds of appeal. The only option available to the respondent/appellant in a situation where his appeal has been dismissed for want of prosecution, is to appeal to the Supreme Court as this court by dismissing the appeal under Order 6 rule 10 becomes functus officio. The case of US.A. Plc. v. Ajileye (supra) is very relevant to the instant matter. By the provision of Order 6 rule 10 of the Court of Appeal Rules, 2002, where an appellant fails to file his brief within the time stipulated or the time extended by the court, the respondent may apply to the court for the dismissal of such appeal for want of prosecution, once such appeal is dismissed, the decision becomes final and court becomes functus officio, See the cases of Olowu v. Abolore (1993) 5 NWLR (Pt 293) 255; Babayagi v. Bida (1998) 2 NWLR (Pt.538) 367; Yonwuren v, Modern & Sons (Nig) Ltd (1985) 1 NWLR (Pt.2) 244; Obiora v. Osele (1989) 1 NWLR{Pt 97) 279; UBA Plc v. Ajileye (supra).

There is no dispute that the grounds of appeal are the same and the parties are also the same and the issues proposed on them is issue No, 5 in the appellants brief of argument which relates to and covers these grounds of appeal which as I said above, have been dismissed along with the entire interlocutory appeal in appeal No.CA./J/210/98 , It would amount abuse to process to bring them again in this appeal for adjudication. The point raised by the learned Senior Advocate of Nigeria on hearing on the merit is totally irrelevant since there is statutory rule that (vide the provisions of Order 6 rule 10) which frown against entertaining an appeal already dismissed by this same court. As I remarked above: the only option open to the respondent/appellant is to appeal against the dismissal of that appeal, due to lack of diligent prosecution to the apex court.

As a corollary, the motion is adjudged meritorious. The first reliefs sought in the application is hereby granted. Grounds of appeal Nos.7, 8 and 9 are hereby struck out and the said grounds are discountenanced. All the arguments relating to them in issue No.5 in the appellant’s brief of argument are also struck out and discountenanced.

The reliefs in two motions filed by the applicants have been granted and in the result, the appeal has been dismissed. However, in the event that I am wrong in my reasoning and the conclusion reached on the two motions, I shall still consider the appeal for whatever purpose it will serve.

As I posited earlier, the appellant being dissatisfied with the decision of the lower court, it appealed to this court. the appellant filed fourteen grounds as contained in the original notice of appeal filed on 23/10/1998 by the firm of Ibrahim Hamman and Co. I shall below reproduce the fourteen grounds of appeal without their particulars for case of reference. The grounds are:

(1) The learned trial Judge erred in law in giving judgment in favour of the respondents when they had failed to prove their case against the appellant.

(2) The learned trial Judge erred in law in holding that the respondents had the capacity to institute the action against the appellant when the respondents were at best agents of the Bauchi State government.

(3) The learned trial Judge erred in law when he failed to dismiss the claim of the 2nd respondent who merely acted as the servant or agent of the respondent.

(4) The learned trial Judge erred in law when he held on the basis of Clause 14(d) of the exhibit 1 that the appellant was a party to the contract for the importation of hospital equipment between Bauchi State Government and the respondents.

(5) The learned trial Judge erred in law when he held in effect that the appellant was estopped from denying the respondents’ claim in the face of its attempt at settlement out of court as pleaded in paragraphs 45 to 49 of its further amended statement of defence.

(6) The learned trial Judge erred in law in granting the respondents leave to amend their amendment statement of claim to include a claim in foreign currency after conclusion of the trial and addresses especially when the effect of the amended was to change entirely the character of the claim before him and this error occasioned a miscarriage of justice.

(7) The learned trial Judge wrongly exercised his discretion when he refused to adjourn the suit to enable the appellant to call its witnesses and swiftly proceeded to close the appellant’s case without allowing it to prove its counter claim and thereby denied fair hearing to the appellant.

(8) The learned trial Judge misdirected himself on the facts when he held that the appellant bluntly refused to enter its defence.

(9) The learned trial Judge exercised his discretion wrongly in denying the appellant’s application for leave to conclude its cross-examination of the 2nd respondent (PW2) and thus denied fair hearing to the appellant.

(10) The learned trial Judge misdirected himself on the facts the appellant was responsible for the alleged shol1’91919197fall of ?616,019.06 when the evidence before him showed that there was no delay whatsoever on the part of the appellant in the opening of letters of credit and remitting the proceeds to the manufacturers.

(11) The learned trial Judge erred in law in basing his decision on various paragraphs of the appellant’s further amended statement of defence in the absence of any evidence given in support thereof.

(12) The learned trial Judge erred in law when after awarding to the respondents the sum of ?616,019.36, representing their alleged loss, he proceeded to make a further award in the sum of N3.5million for ‘91919191unfair treatment’91919191.

(13) The decision of the learned trial Judge is inspired and tainted by bias against the appellant on the part of the learned trial Judge resulting in a miscarriage of justice.

(14) The learned trial Judge erred in law in failing to consider and apply the decisions in the cases of

(a) West African Shipping Agency (Nig.) Ltd. v. Alhaji Mustapha (1979) 3 SC

(b) Shell Co. Ltd. v. Jammal Engr. (1974) 4 SC 33

(c) Jessica Trading Co. Ltd. v. Bendel Insurance (1993) 1 NWLR (Pt.271) 538, (1993) 1 SCNJ 540.

From these grounds of appeal, the appellant distilled seven issues for determination, in its brief of argument which was filed on 23/3/2000. It needs to be noted that the appellant also on 23/5/2000 filed appellant’s reply brief. The respondents on the other hand filed their brief of argument on 18/4/2002 with leave of this court, In their brief of argument, four issues were proposed for the determination of the appeal. In this brief of argument, the respondents incorporated their preliminary objection. I will set out below the issues for determination formulated by both parties.

The issues formulated by the appellant in its brief are as follows:

I. Whether on the evidence adduced by the respondents they had established their claim against the appellant. This issue covers grounds of appeal Nos. 1, 4 and 10?.

II. In the purchase of hospital equipment, were the respondents not acting merely as agents of the Bauchi State Government while the 2nd respondent acted as agent of the 1st respondent, and if so, could the respondents sue or be sued for, any loss arising from the contracts? This issue covers, grounds of appeal Nos. 2 and 3.

III. Having himself prevented the appellant from adducing evidence in support of its defence and counter-claim, was it open to the learned trial Judge to enter judgment against the appellant on the basis of the averments in its amended statement of defence in the absence of any evidence in support thereof even if the defences raised were inconsistent? This issue covers grounds of appeal Nos. 5 and 11.

IV. Was the learned trial Judge right when after the conclusion of the trial and final addresses by the parties, he granted leave to the respondents to amend their statement of the claim from a claim in local currency (Naira) to one in foreign currency (pounds sterling)?. This issue relates to ground of appeal No.6.

V. Whether in the circumstances of this case, the learned trial Judge properly exercised his discretion when he refused the appellant’s application for leave to conclude its cross-examination of the 2nd respondent and refused to grant the appellant an adjournment to call its witnesses?. This issue relates to grounds of appeal Nos. 7, 8 and 9.

VI. Was the learned trial Judge right to award the sum of N3.5million to the respondents for unfair treatment? This issue relates to ground of appeal No. 12.

VII. Whether it can be said that the learned trial Judge acted with bias against the appellant and if so, whether his judgment can be sustained?. This issue relates to ground of appeal No. 13.

The four issues for determination identified by the respondents include the under mentioned:

(a) Whether the respondents have the competence and capacity to maintain the action, let alone establishing their case so as to entitled them to judgment as entered? grounds 1, 2, 3, 4, 10 and 12.

(b) Whether the trial Judge was right in making reference to the amended statement of defence notwithstanding that the appellant did not defend the case?. Grounds 5 |and 11.

(c) Whether having regard to the circumstances of this case, the trial court was right in granting leave to the respondents to amend their statement of claim?. Ground No.6.

(d) Whether, having regard to the entire circumstances of this case involving exercise of discretion on adjournments in favour of the appellant on several occasions inter alia, the learned trial Chief Judge can be said to be biased against the appellant?. Grounds 7, 8, 9 and 13.

Now, since the respondents raised preliminary objection in their brief of argument, I shall first of all consider the objection before treating the appeal if need be. The preliminary objection raised by the respondents is premised on three grounds:

(A) Whether the entire appeal vide the notice of appeal is competent, having been brought by a person unknown to law?.

(B) Whether grounds Nos. 7, 8, 9 and 13 of the grounds of appeal which impugn on the interlocutory rulings/proceedings of the trial court and by extension, the issues related thereto are competent and arguable without leave of the Honourable Court, having regard to section 25(1)(2)(a) of the Court of Appeal Act, 1976 as well as section 221(1) of the 1979 Constitution?.

(C) Whether grounds 5, 7, 8, 11 and 12 of the grounds of appeal are competent and arguable, having regard to Order 3 rule 2(2) (3) and (4) of the Court of Appeal Rules, 1981 as amended?.

Let me pause here to say that the first ground of objection set out above has been partly dealt with while considering the first motion in the fore paragraphs of this judgment. I shall however treat or consider it again even at the expense of being repetitive. It is the submission of the learned counsel for the respondent that from the definition of ‘an appellant’ under section 32 of Court of Appeal Act, 1976, there are two classes of persons who can be ‘appellant’ or who can institute an appeal. These two classes, according to the learned counsel are (1) a person who desires to appeal from decision of trial court and (2) a legal practitioner representing that person. The learned counsel submitted that in the instant case, the appellant did not file the appeal as it did not sign the notice and ground of appeal. Similarly, the firm of Ibrahim Hamman and Co. that issued, signed and filed the appeal on behalf of the appellant is not a person recognized by law to file an appeal as it did not qualify to be a legal practitioner or as ‘legal representative’ of the appellant within the definition of a ‘legal representative’ as provided by the provisions of Order I rule I of the Court of Appeal Rules, 1981 as amended as ‘person admitted to practice in the Supreme Court’ or as legal practitioner within the definition provided in section 2(1) of Legal Practitioners Act. The learned counsel for the respondents further argued that the firm of Ibrahim Hamman and Co. is not on the roll of legal practitioners and, thus, not competent to file an appeal on behalf of any appellant. He said that this appeal, having not been filed by a person authorized by law to file it becomes incompetent. He cited and relied on Registered Trustees of the Apostolic Church, Lagos Area v. Rahman Akindele (1967) 1 All NLR 110, (1967) NLR 110 at 120. I have carefully perused the appellant’s reply brief filed on 13/5/2000. I am afraid there is nowhere in which were the appellant replied to the argument therein on this plank of the respondents’ preliminary objection. I shall therefore consider the submissions of the respondents on the ground of objection alone. It is clearly noticeable that the notice and ground of appeal was filed and signed by the firm of Ibrahim Hamman and Co. on behalf of the appellant on 23/10/1998. Certainly, the firm of Ibrahim Hamman and Co. is not a legal practitioner within the purview of the Legal Practitioners Act and Rules of our court to file an appeal on behalf of an appellant. Only a legal practitioner who is registered in the roll and authorized to practice as an advocate in the Supreme Court of Nigeria can file, sign a notice of appeal and not a firm of legal practitioners. In the case of Registered Trustees of Apostolic Church, Lagos Area v. Rahman Akindele (supra), the legal practitioner signed the notice of appeal as J. A. Cole for ‘J. A. Cole and Co.’ Objection was raised as to inclusion of the business name ‘J. A. Cole and Co.’ and the Supreme Court had this to say:

“In signing the notice of appeal, Mr. Cole used his own name, that is to say, the name in which he is registered as a legal practitioner. We hold that on any interpretation of the rules that it was sufficient compliance with them and we do not accept the submission that the addition of the words for J.A. Cole and Co. would invalidate the signature, if a signature in a business name was not permitted.”

It is well settled law that only an appellant himself or a legal practitioner defined in Legal Practitioner’s Act can sign a notice of appeal. The firm of ‘Ibrahim Hamman and Co.’ is not a registered legal practitioner but simply a registered legal firm or a business name. It is not a person which exists in law. Only persons known to law can initiate an action in court. A non-juristic person can not sue or be sued. See Ogbodu v. Ishokare (1964) NMLR 234. Where same one that has no capacity to sue or can not sue on behalf of another person, he can not appeal on behalf of another. Thus, the notice of appeal, having been issued, signed and filed by a firm that is not authorized by law to issue same, is certainly defective and indeed incompetent. The defect renders it incurable and is, thus, liable to be struck out. The appeal which was brought by person not so authorized to file it, is incompetent. The preliminary objection is therefore well taken on this ground and is accordingly sustained on the first leg of the objection.

In the second plank of the preliminary objection the respondent/objection or challenged the competence of grounds of appeal numbers 7, 8, 9 and 13. The learned counsel for the appellant submitted that these four grounds of appeal relate to interlocutory proceedings of the lower court in respect of which leave has to be sought and obtained. He also in another breath challenged the competence of grounds of appeal Nos. 5, 7, 8, 11 and 12 as according to him, they do not comply with the provisions of Order 3 rule 2(2), (3) and (4) of the Court of Appeal Rules of 1981 as amended.

On the first set of grounds of appeal, i.e., grounds 7, 8, 9 and 13, the learned counsel argued that they all touch on interlocutory rulings/proceedings of the lower court at different times. He submitted that no leave was sought and obtained before filing these grounds of appeal. He said two weeks statutory period within which to file an appeal against an interlocutory order had expired and no leave for extension of time to file appeal on these grounds was ever obtained from this court before filing and canvassing them. He relied on Agu v. Ayalogu (1999) 6 NWLR (Pt. 606) 205 at 221/222. He also referred to the provisions of section 25(1), (2)(a) of the Court of Appeal Act, 1976 and section 221 of the 1979 Constitution of the Federal Republic of Nigeria which said provisions are mandatory. He further submitted that having failed to obtain leave of this court to appeal on these grounds of appeal which are on interlocutory matters conducted over two months before this appeal was filed on 23/10/1998, the said grounds are in opposition to and violate the provisions of sections 25(1) and (2)(a) of Court of Appeal Act, 1976 and section 221 of the 1979 Constitution. He said they are therefore incompetent and unarguable. He said all the issues related to them, i.e., Issues Nos. 5 and 7 and the arguments in their support in the appellant’s brief of argument go to no issue and should be discountenanced. He cited and relied on the cases of Oshatoba v. Olujitan (2000) 5 NWLR (Pt. (55) 159 at 172: News Watch Communications Ltd. v. Atta (2000) 2 NWLR (Pt. 646),592 at 604; Eze v. Ejelonu (1999) 6 NWLR (Pt. 605) 134 at 142; The Registered Trustee CAC v. Uffiem (1998) 10 NWLR (Pt. 569)312 at 320/321. He finally urged this court to strike out these four grounds and the issue distilled from them and the arguments on them too.

On the second leg of this objection on this plank, the respondents’ counsel submitted that grounds 5, 7, 8, 11 and 12 of the grounds of appeal are defective for reason of non-compliance with Order 3 rules 2(2), (3) and (4) of this court rules. On this, he argued that grounds 5 and 8 are inchoate, argumentative in nature and vague. They are also incongruous with the alleged error and general in terms. On ground 7, the learned counsel alleged that the particulars in it are also argumentative and incongruous with the ground itself. As for ground No. 11, it was submitted that it was narrative and its particulars of error are argumentative too. He submitted that in all these four grounds of appeal no passage of the lower court’s judgment was specifically referred to or quoted. He relied on the case of Silencer & Exhaust Pipes Co. v. Farah (1998) 12 NWLR (Pt. 579) 624 at 638; Fadco Ind. (Nig.) Ltd. v. I.B.W.A. Ltd. (1998) 9 NWLR (Pt. 565) 309 at 316. He urged that the said grounds 5, 7, 8, 9, 11, 12 and 13 and the issues and arguments profered on them in the appellant’s brief of argument be struck out and discountenanced.

Responding to the submissions on these grounds of objection, the learned counsel for the appellant submitted in his appellant’s reply brief filed on 23/5/2000 that ground No:13 does not relate to interlocutory issue. It relates to issue of bias on the part of the learned trial Judge on the trial generally conducted. He said there was therefore no need to seek leave or any extension of time to appeal on that ground which he said is valid and arguable. As for grounds 7 and 8, the learned appellant’s counsel submitted that they are complaints on wrong exercise of discretion touching on fair hearing and, thus, not on interlocutory matters which require leave. He cited the decision of Onehi Okobia v. Mamodu Ajanya (1998) 6 NWLR (Pt.554) 348, (1998) 5 SCNJ 95; Ogigie v. Obiyan (1997) 10 NWLR (pt. 524) 179 at 14.

He also submitted that the matters complained of with grounds 7, 8 and 9 are part of the main trial and not interlocutory decision per se, requiring leave or extension of time. Also, they simply complain against denial of fair hearing. He cited Rasaki A. Salu v. Madam Towwo Egeibon (1994) 6 NWLR (Pt.348) 23, (1994) 6 SCNJ (Pt.11) 223 at 232/233; lweka v. SCOA (2000) 7 NWLR (Pt.664) 325, (2000) 3 SCNJ 71 at 91.

With regard to grounds of appeal Nos. 5, 7, 8, 11 and 12, the learned counsel for the appellant submitted that each of the grounds is valid and none of them is narrative, vague or argumentative or has violated Order 3 rule 2(2), (3) and (4) of Court of Appeal Rules of 1981 as amended. What the law requires according to the learned counsel for the appellant, is that on grounds containing error in law or misdirection, the particulars of error or misdirection must be given.

He said each of them contained particulars of error or misdirection complained of and none can be described as vague. He said grounds 5, 7, 8, 11 and 12 are valid, competent and arguable and he urged this court to so hold, and to finally over rule the entire objection.

The first leg of the objection on this ground relates to the competence or otherwise of grounds of appeal Nos. 5, 7, 8 and 13. Ground 7 when closely scrutinized shows that it was a complaint on the ruling or proceedings of the lower court delivered on 16/7/98 where application for adjournment for it to call its witnesses was refused. The appellant was ordered to call its witness on that day which was fixed for defence and on its refusal to enter its defence, the trial court declared its defence as closed. There is no doubt that this complaint relates to an interlocutory matter. Also ground No.8 is a challenge on the lower court’s proceedings on which the court delivered ruling on 18/8/98. (See P. 195 para. 4 of the record) where the court talked of ‘blunt refusal’ to enter defence. This ground also emanates from an interlocutory issue. Ground No.9 pertains to exercise of discretion of the lower court when it dismissed the application of the appellant for leave to conclude its cross-examination of PW5, i.e., the 2nd respondent herein. This ground, in my view, also relates to interlocutory issue. Ground No. 13 which talks of bias. If closely considered, one can say it originates from the interlocutory proceedings of the lower court or, order of accelerated hearing made on 10/6/98, refusal of adjournment on 26/6/98 and dismissal of application for stay of proceedings on 18/8/98. No doubt the alleged bias which were complained of in this grounds relates to interlocutory rulings or application and not the entire trial as submitted by the learned counsel of the appellant on a close look at the particulars of the said same ground. It is settled law that appeal against an interlocutory order of court should be filed within fourteen days. See section 25(2)(a) of the Court of Appeal Act of 1976.

Where a party in an appeal against final judgment complains against a ruling in an interlocutory application which has been delivered outside the statutory period allowed, to file an appeal against an interlocutory decision under section 25(2) of the Court of Appeal Act, such a party must seek leave to extend time to appeal. See Newswatch Communications Ltd. v. Atta (supra). In other words, where a party combines appeal of a final judgment with one for interlocutory matter, then in the latter, the appellant must file his appeal within 14 days from the date of the ruling. See section 25(1), (2)(a) of the Court of Appeal Act. See also section 221 of 1979 Constitution of Federal Republic of Nigeria or sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria. See also the case of Ogigie v. Obiyan (supra). This is a statutory requirement which must be complied with as any failure to comply with these provisions renders the ground of appeal and all the issues distilled from such grounds of appeal which are incompetent must be struck out. See Bowaje v. Adediwura (1976) 6 SC 143; Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257 at 262; Oshatoha v. Olujitan (supra); Royal Exchange Assurance (Nig.) Plc. v. Michael Anumn (2003) 6 NWLR (Pt. 815) 52 at 79/84. I must say, however, that the Court of Appeal may exercise its discretion under Order 1 rule 19(4) of the Court of Appeal Rules of 1981 as amended in granting leave to any defaulter, to file appeal out of time. But where no such leave is sought and obtained the grounds of appeal become incompetent and are liable to be struck out along with the issues raised on them and the argument related thereto. Since these four grounds of appeal relate to interlocutory matters and the appellant failed to appeal timeously and no leave was sought and obtained for extension of time to appeal on such interlocutory matters, the said grounds are incompetent and unarguable. The arguments posed on issues 5 and 7 have to be struck out and discountenanced. The four grounds namely Nos. 7, 8, 9 and 13 and their issues and arguments related thereto are hereby accordingly discountenanced. The objection is therefore sustained on that segment.

The next segment of the objection is premised on the competence of yet another set of grounds of appeal, namely grounds of appeal numbers 5, 7, 8, 11 and 12 as contained in the notice of appeal filed on 23rd October, 1998. The grounds of appeal complained of in this segment of the objection, namely grounds numbers 5, 7, 8, 11 and 12 all complained of error in law or misdirection. For a ground of appeal to be valid and competent, it must comply with the provisions of Order 3 rules 2(2), (3) and (4) of the Court of Appeal Rules, 1981 as amended. Any ground of appeal alleging misdirection or an error in law must fulfill the following conditions:

(1) quote a passage of the judgment where the misdirection or error in law is alleged to have occurred.

(2) Specify the nature of the error in law or misdirection, and

(3) give full substantial particulars of the alleged error or misdirection.

See Lucas Pharmaceutical Chemist Ltd. v. Roche (Nigeria) Ltd. (1995) 1 NWLR (Pt. 369) 28; Silencer & Exhaust Pipes Co. v. Farah (supra). Generally, where a ground of appeal complains of error of law or misdirection in law, the particulars of the error of law or misdirection must not only be stated but they must be seen to be clearly stated because they constitute the specific reasoning or findings or observations of the court below, leading to the filing of an appeal against it. The important thing is that the particulars must be discernable. The discernibility of the particulars- it starts and ends with the particularization of same on separate paragraphs or sub-paragraph. The modern trend now which has become an accepted principle of practice of law is that once the particulars of error of law are identifiable from the wording of the grounds of appeal such ground is valid in law. See Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484. I have closely examined all the five grounds of appeal complained against. I do not regard them as nebulous or general in terms or argumentative or narrative, almost all of them are based on the ruling or final judgment of the lower court appealed against and are posing challenges on the validity of the ratio of the said decisions.

In my considered view, all the five grounds of appeal are not vague, inchoate or incongruous with the particulars of errors alleged as contended by the respondents’ counsel. See Azaatse v. Zegor (1994) 5 NWLR (Pt. 342) 76. For these reasons I over rule the objection of the learned respondents’ counsel on this second plank of his objection only.

Before I venture to consider the substantive appeal I wish to make an observation on the ground No.6 in the original notice of appeal. The said ground of appeal is reproduced below again without its particulars. It reads thus:

“The learned trial Judge erred in law in granting the respondents leave to amend their amended statement of claim to include a claim in foreign currency after addresses especially when the effect of the amendment was to change entirely the character of the claim before him and this error occasioned a miscarriage of justice.”

A close study of the above ground of appeal which is a ground of law leaves me in no doubt that it also relates to interlocutory matters very much like grounds 7, 8, 9 and 13 which I discussed supra. Though it is not included by the respondents as one of those related to interlocutory matters perhaps inadvertently, I feel it should suffer the same fate with grounds 7, 8, 9 and 13 which I had struck out earlier because no leave was sought and obtained before they were raised under section 25(2) of the Court of Appeal Act and section 221 of the 1979 Constitution or section 246 of the 1999 Constitution. Similarly, no extension of time was sought and obtained before it was filed. It should therefore suffer the same fate with its twin sister grounds of appeal which are held to be incompetent. I therefore also hold this ground of appeal as incompetent and accordingly strike it out. Issue No.3 which originate from it and the entire arguments advanced on it are hereby discountenanced too.

In any case, since my observation is made suo motu without giving parties opportunity of addressing me on it, I shall still consider it later on its merit in the event that my observation and conclusion are wrong or that I have no right to make such observation suo motu at this stage. Now, having struck out grounds of appeal Nos. 7, 8, 9 and 13 and also discountenanced issues Nos. 5 and 7 related to them, I do not see the need to consider them here again so they were struck out by me. I am therefore left with issues Nos. 1, 2, 3 and 4 only as contained in the appellant’s brief of argument. Since I regard the appellant’s issues more convenient, I choose to be guided by those issues for determination in view of their elegance and more accommodative posture.

Issue Nos. 1 and 2

These issues relate to whether from the evidence adduced by the respondents/plaintiffs, it can be said that the latter proved its claims against the appellant/defendant and whether the 1st respondent was agent of Bauchi State government and the 2nd respondent was agent of 1st respondent and therefore lack the capacity to sue the appellant. The appellant submitted that the respondents’ claim against the appellant was predicated upon the alleged delay by the appellant in opening letters of credit and remit the foreign exchange to the suppliers of the hospital equipment, Sartra International Ltd. in England. He argued that proof of undue delay in opening the letters of credit and remittance of foreign exchange is german to the respondents’ case and without such proof there is no liability for any short fall or increase in price that can be put on the appellant. The learned counsel of the appellant submitted that the respondents failed to establish the alleged delay at the trial and were thus not entitled to judgment on that claim. It was also submitted by the appellant’s counsel that the Central Bank of Nigeria gave an undertaking to repay the loan granted by the appellant to the Bauchi State government for the purchase of hospital equipment in February, 1988. (See exh. 3).

This being the case, the opening of the letters of credit could not have begun earlier than that date and it is only after the Central Bank of Nigeria allocates foreign exchange upon a successful bidding that the appellant could open the letters of credit. He said there was no evidence adduced by the respondents that the request of the foreign exchange was approved by Central Bank though there is evidence that the letters of credit were opened in July, 1988. He further argued that if letters of credit were opened between 1st July, 1988 and 20th July, 1990, then they were issued within 2 years and not three years, five months as contended by the respondents. It is further submitted by the appellant that on the letter by Sartra International Ltd. the suppliers of hospital equipment notifying the respondents of alleged shortfall of ?616,019.36 which was written to the respondents it was dated 20/3/1999, that is to say 8 months after the last letter of credit was opened by the appellant. This raises doubts if there was any short fall at all or increase in the price or that such an increase could be attributable to any delay on the part of the appellant in the opening of letters of credit. He said notice of increase should have been given shortly when the letters of credit were being opened or shortly thereafter, if it was meant that it was the delay in the opening of the letters of credit that led to the increase or shortfall, and not 8 months thereafter. He denied that the shortfall or increase was as a result of the delay in the opening of letters of credit.

Regarding the issue of remittance of foreign exchange covered by the letters of credit, the learned counsel submitted that only the evidence of 2nd respondent, the PW5 (i.e., ipse dixit), that was adduced as to when the said foreign currencies was remitted to Sartra International Ltd. He urged this court to note that international transaction of such magnitude of foreign currency is not remitted by word of mouth. This court should therefore hold that foreign currency was remitted promptly and without delay. (See section 132(1) of Evidence Act). He also submitted that the delay in the opening letters of credit or remittance of foreign exchange based on the letter of credit can be attributed to the appellant because the 2nd respondent (PW5) even admitted during cross-examination that letters of credit are based on proforma invoices sent by the suppliers of equipment, Sartra International Ltd.

In further submission, the learned appellant’s counsel argued that the respondent in fact caused the delay in opening letters of credit because of their failure to pay the premium of Marine Insurance which is a prerequisite in opening letters of credit. The respondent had to ask for loan to pay such insurance premium on 6/7/88.

The learned appellant’s counsel further submitted that the contract agreement was that of loan agreement entered into between the Bauchi State Government and the appellant while the other contract for supply of hospital equipment was between the Bauchi State Government and the respondent to the exclusion of the appellant as shown by exhibit 1. The mere mention of the appellant in exhibit 1 can not make it a party thereto. By exhibit 1, the parties to the contract were Bauchi State Government and the 1st respondents who are the signatories to exhibit 1. He argued that there is no privity of contract between the respondents and appellant and as such, the respondent can not base any legal claim against the appellant on exhibit 1 and the appellant can not also be bound by exhibit 1 or be liable for breach of contract by virtue of Clause 14(d) of the contract agreement (exh.1). It was further argued on behalf of the appellant, that there was no privity of contract between the respondent and the appellant in the loan agreement as that contract was between Bauchi State Government and the appellant and when the letter provided all the funds granted as loan to the former, the contract was discharged by performance. He added that even if there was any shortfall as a result of non-performance by the appellant, it is the Bauchi State Government and not the respondent that could sue the appellant as there was no obligation on the appellant towards the respondent. On the issue of privity of contract, he cited the decisions of Chibe Ikpeazu v. African Continental Bank Ltd. (1965) NMLR 374 at 379; Alfotrin v. A.-G., Federation (1996) 9 NWLR (Pt.475) 634, (1996) SCNJ 236 at 254/255; Okoabor v. Eyobo Engr. Services (1991) 4 NWLR (Pt. 187) 561; Merchantile Bank of Nigeria Ltd. v. P A. Abusomwan (1986) 2 NWLR (Pt. 22) 270 at 280/281. The learned appellant’s counsel finally urged this Court to hold that the respondents did not prove the case before the trial court and were therefore not entitled to have judgment entered in their favour.

Responding to the appellant’s counsel submission on the respondents capacity to sue, the learned counsel for the respondent copiously referred to paragraphs 9 and 10 of the statement of claim filed by the respondents and stated that the appellant had in its paragraphs 14 and 15 of its amended statement of defence admitted the respondents’ averment as regards its (appellant) involvement in the contract agreements. He argued that facts admitted need no further proof. He added that all these show that the respondents had capacity to sue the appellant on the contract. He cited section 75 of Evidence Act and the cases of CCB Ltd. v. Nwokocha (l998) 9 NWLR (Pt. 564) 98 at 110; Okparaeke v. Egbuonu (1941) 7 WACA 53; Ojukwu v. Onuwudiwe (l984) 1 SCNLR 247; Owosho v. Dada (l984) 7 SC 149.

The learned counsel for the respondents further submitted that the respondents have the competence and capacity to maintain action against the appellant in view of exh. 1. He denied the appellant’s counsel’s submission that the appellant is a stranger to the contract agreement or the transaction, in view of exhibit 1. He argued that the appellant directly benefited from the transaction and had gained some profit on money provided to finance the contract in question. This being the case, the learned counsel, for the respondent argued that the respondents have locus standi to maintain this action against the appellant.

I think it is apt to consider the pleadings to ascertain whether the respondents have the locus standi to sue the appellant’s in the suit filed before the lower court, In paragraph 9 of their statement of claim, the respondents/plaintiffs averted as follows:

“Indeed, after executing the contractual agreement in this case, Bauchi State Government instructed the defendant to go ahead and open letters of credit in favour of the plaintiffs overseas and to enable the plaintiffs procure the supply of the hospital/medical equipment from their overseas suppliers, namely, Sartra International Limited… The plaintiffs plead and shall rely on all the relevant documents in this regard.”

This averment of the plaintiffs was admitted by the appellant in paragraph 14 of the statement of defence and counter-claim. In a portion in paragraph 21 of the statement of defence, the appellant admitted bidding for foreign exchange on behalf of the respondents after admitting in paragraph 20 that the respondents made request for foreign exchange which it conceded was allocated. It is also established from the pleadings that the respondents were age-long customers of the appellant. It is clear from Clause 14(a) of the contract agreement (exh. 1) that the bank, i.e., the appellant was to be responsible for all payments clue to the contractors while Bauchi State Government will be dealing with the bank on all financial matters. This is a proof that there is privity of contract between the appellant and the respondents. The respondents, therefore, can in my view, maintain action against the appellant. It is trite, that any person who is not a party to a contract cannot make a claim unless he is a privy thereto or he acquired some legal interest. As I said earlier, in the instant case, there is privity of contract between the appellant and their respondents. There is ample evidence that the appellant had benefited from the transaction covered by exh. 1 and this evidence supported the averments of the plaintiff in the pleadings. Even from paragraphs 20(c), 27 and 34 of the further amended statement of defence, the appellant conceded that it paid money meant for the execution of the contract into the respondents’ account on the pre of unutilized balance. This clearly shows there is a contract between it and the respondents, if not what business has it got to do with crediting the account of the respondents? To my mind, I think the lower court is right in holding that the respondents could maintain action against the appellant. The respondents can sue and be sued on the contract agreement in case of any breach.

Coming to the issue of proof of the claim, I shall first of all state that the defendant/appellant did not defend this suit at the lower court. The record clearly shows that ample opportunity was given to the defendant/appellant to defend the suit but as in the words of the learned trial Judge it ‘bluntly refused’ to defend the suit filed against it.

It is settled law that in uncontested suit, the burden of proof is a minimal one. See Ogunjumo v. Ademola (1995) 4 NWLR (Pt.389) 254, (1995) 4 SCNJ 54. Also in an uncontested suit, the evidence adduced by the plaintiff remains uncontroverted, and unchallenged and the court is free to and in fact, bound to accept and rely on it. See Egbunike v. ACB Ltd. (1995) 2 NWLR (Pt.375) 34, (1995) 2 SCNJ 68 at 77 and 78; Imana v. Robinson (1979) 1 All NLR 1 at 8.

Now let us consider the testimonies of some of the witnesses called by the plaintiffs/respondents at the trial to ascertain if the respondents had proved their claims against the appellant and were thus entitled to the judgment they were given at the trial court.

On page 124 of the printed record of proceedings of the lower court, the first plaintiff witness (PW1) who was the Director Medical Services in Bauchi State Government had this to say:

“It was the duty of the defendant to make all payments due to the 1st plaintiff’s as the contractors to the 1st plaintiff.”

This same witness admitted that the respondents introduced the appellant to Bauchi State government. PW2, a one time Commissioner of Health gave evidence supporting PW1’s testimony regarding the obligation on the appellant to make all payments to the 1st plaintiff (see also the evidence of PWs 2, 4 and 5 who also testified in support each of the averments in the pleading by plaintiffs and the documentary exhibits tendered in proof of the claim by the plaintiffs/respondents to justify the grant of the reliefs sought. These pieces of evidence remained intact, unchallenged, uncontradicted and uncontroverted as no credible evidence whatsoever was adduced in their rebuttal. It is my candid view therefore, that the evidence adduced by the respondents sufficiently proved their claims against the appellant. The issue is therefore resolved in favour of the respondents against the appellant.

The next question is whether in the purchase of hospital equipment, the respondents were not acting merely as agents of Bauchi State Government and the 2nd respondent simply acted as agent of the 1st respondent and also whether the respondent could sue or be sued for any loss arising from the contract. The learned counsel for the appellant submitted that throughout the transaction, i.e., importation of hospital equipment, the 1st respondent acted merely as agent of Bauchi State Government and that exh. 1 is an gency agreement by which the Bauchi State Government employed the 1st respondent as its agent for the importation of the hospital equipment. This is the averments in their pleadings (paragraphs 5 to 10 of the original statement of claim dated 11/8/95 and amended statement of claim of 18/9/1998). This, according to him is supported also by testimonies of all plaintiffs’ witnesses and their pleadings too. By these however, the respondents were agents of a disclosed principal. He submitted that by their position, the respondents can neither sue nor be sued. See Alan Bojor Bros. & Anor. v. Greek West Africa Line & Anor. (1971) 1 UILR (Pt. 4) 488 at 491. The learned counsel for the appellant further submitted that if in the course of carrying out their principal’91919191s (Bauchi State Government) instruction they have alleged in this case, their remedy lies against their principal (the Bauchi State Government) and not against any third party including the appellant. See a book titled “Bowsteed On Agency” 14th Ed, pages 201 ‘91919197 202. The learned appellant’9191s counsel further submitted that when the respondents realized that the additional sum of ?616,019.36 was to be paid as demanded by the suppliers, Sartra International Ltd. in exh. 15, they ought to have referred this demand to their principal, i.e., Bauchi State Government which had the contract. He argued in February, 1990 there was a variation of the contract sum, i.e., additional cost of equipment in the sum of N8,094,581.00 (equivalent to ?606,615.00), the fact was brought to the attention of Bauchi State Government which then requested additional bank loan from the appellant to finance the additional cost or shortfall. Similarly, when the price of the equipment was soared by the supplier, the respondent approached the Bauchi State Government for more funds to finance the shortfall. He added that from the action of the respondents as highlighted above, the respondents acknowledged their position as agents of Bauchi State Government which alone was responsible for shortfalls arising from any delay on the part of the appellant to remit money. The appellant’9191s counsel further submitted that when shortfall of ?616,019.36 occurred of which they were notified by exh. 15, it was not open to them to abandon their position and turn round to sue the appellant as they did. The appellant submitted also, that even if the respondents paid the money to Sartra International Ltd. upon the latter, demand, their remedy was to recover it from the Bauchi State Government and not to sue the appellant. He finally submitted that the 2nd respondent being an agent of a disclosed principal, i.e., the 1st respondent, he could not acquire any personal rights in the matter and as such, he could not personally sue or be sued. He concluded his submission on this issue by saying that the learned trial Judge was in error when he failed to dismiss the 2nd respondent’9191s claim for lack of capacity to sue. He urged this court to answer this question in the negative.

As I stated earlier, the appellant had admitted vide the paragraph 21 of the statement of defence that the respondents had requested for foreign exchange and that it shared the foreign exchange it received among its customers collected from the Central Bank of Nigeria. The contract which was duly entered by the respondents and appellants involving opening of letter of credit by the appellant in favour of the respondent is in my view an enforceable one at the option of either of the 2 parties. It will therefore not be correct to say that the respondents lacked the competence or capacity to sue the appellant for breach of that same contract leading to the ‘shortfall’ caused by the delay in the opening of the letter of credit or to say that the respondents could only sue Bauchi State government. The appellant in my view though may be a third party- it is a financier of the contract and therefore an important and vital party to the contract agreement (exhibit 1) which is the main contractual document clearly made references to the three vital parties, namely, the Bauchi State government, the defendant/appellant bank and the 1st respondent and the 2nd respondent signed this exhibit on behalf of the 1st plaintiff/respondent. It is my view that the 1st respondent had the capacity and is legally competent to sue the appellant. I also resolve the 2nd issue in favour of the respondent and against the appellant.

Issue No.3

The third issue queries whether the learned trial Judge was right to enter judgment against the appellant on the basis of averments in its amended statement of defence in support thereof taking into consideration the fact that the appellant did not lead evidence to defend its case or prove its counter-claim. The learned counsel of the appellant’s submitted that the trial Judge heavily relied on the averments of the defendant/appellant in paragraphs 43 – 48 of the defendant’s/appellant’s statement of defence in finding for the respondents. He submitted that the learned trial Judge is wrong in doing so since pleadings do not amount to evidence unless they are admitted in the opposing parties’ pleadings. He cited Odebunmi v. Abdullahi (1997) 2 NWLR (Pt.489) 526, (1997) 2 SCNJ … and Insurance Brokers of Nigeria v. Atlantic iles Manufacturing Co. Ltd. (1996) 8 NWLR (Pt.466) 316, (1996) 9 – 10 SCNJ 171. He further submitted that the paragraphs mentioned do not amount to admission for the learned trial Judge to rely and act on them in proof of the respondents’ case. He further stated that even in the absence of any rebuttal by the appellant in this case, the evidence adduced by the respondents (both oral and documentary) fell short of proof let alone to call for any rebuttal. He also submitted that evidence adduced by the respondents through their witnesses was so discredited during cross-examination which therefore require no need for the onus of proof to shift on to the appellant. He concluded that had the learned trial Judge not relied on the unproved pleading of the defendant/appellant, he could have come to a different conclusion and would have dismissed the plaintiffs’/respondents’ claims.

In his response, the learned counsel for the respondents though conceded that as a general rule, pleadings do not amount to evidence, he however argued that there are exceptions to the general rule and that exception is where the pleadings of the defence constitutes admission. He re’919197echoed the established principle of law that facts admitted need no further proof. He cited and relied on the case of I.B.WA. Ltd. v. Unakalamba (1998) 9 NWLR (Pt. 565) 245 at 264 and section 75 of Evidence Act of 1990 as amended. He also submitted that paragraphs 44 ‘91919197 49 of the further amended statement of defence are admission by the appellant that it was aware of the shortfall of ?616,019.36 claim and made a move for out of court settlement which did not yield any good result and it was because of that that the appellant introduced the issue of estoppel. He for this reason, submitted that the trial court was right in referring to the said paragraphs of the appellant’9191s pleadings. In a further submission, the respondents’9191 counsel stated that there was nothing wrong or unusual in referring to the pleadings of the defence since courts are allowed to enter judgment on pleadings alone, if there is no serious triable issues raised in the pleadings. See Akintola & Anor. v. Solano (1986) 2 NWLR (Pt.24) 598, (1986) All NLR 422; Honika Sawmill v. Hoff (1994) 2 NWLR (Pt,376) 252, (1994) 2 SCNJ 86 at 94 ‘919197 98.

The main grouse of the appellant here, is that the learned trial Judge was wrong in relying on the pleadings in paragraphs 43 to 48 of the statement of defence filed by the defendant as those pleadings do not amount to evidence since it did not lead evidence on their support at the trial. The law is really long settled that pleadings do not amount to evidence and by extension can not be relied on in proof of an allegation. Pleadings generally do not amount to evidence. Averments made in pleading must therefore be supported by evidence oral or documentary to prove same unless of course such averments are unequivocally admitted by the adverse party. This is so because facts admitted need no proof. See IBWA Ltd. v. Umakalamba (supra).

On pages 215 to 216, the learned trial Judge said thus:-

“The defendant denies shortfall amounting to ?616,019.36 but averred in paragraph 44(a) of its amended statement of defence that…”

Also on page 218 lines 2 – 33, the trial Judge in his judgment went further to say as below:-

“If it is really true that the defendant was not responsible for the delay in remitting the foreign exchange to the suppliers of the hospital equipment, one finds it difficult to understand why the defendant should make the arrangements as pleaded in paragraph 45 of the amended statement of defence.”

The learned trial Judge in his judgment extensively referred to the averments in the statement of defence filed and after so doing, he concluded thus:-

“On the materials referred to above, and on the evidence of PW5, the 2nd plaintiff, I am satisfied that the plaintiffs have established that there is shortfall of ?616,019.36 and I hold.”

From the above, it will be correct to say that the trial court treated the averments in the statement of defence as if they were pieces of evidence from the defence or had regarded them as admission.

It is trite law that every allegation of fact in a statement of claim if not denied specifically or by necessary implication or stated not be admitted, in the statement of defence shall be taken as admitted. See Kyari v. Alkali (2001) 11 NWLR (Pt.724) 412, (2001) 4 SC (Pt. II) 192. It is plain from the pleadings, that those averments in those paragraphs could not be regarded as admission notwithstanding, the introduction of the pleas of estoppel as the learned trial seems to be insinuating and as submitted by the learned counsel for the respondents. Issues had already been joined and from the averments in the statement of defence, the appellant was all along denying the claims made against it by the respondents. To my mind therefore, the learned trial Judge was wrong in referring to and relying on the depositions in the statement of defence as if they were admissions. That is a wrong approach to the issue since the defendant/appellant did not lead any evidence to support those averments in its pleadings. As I said earlier, the averments referred to above by the learned trial Judge were not admission because there had been total and express denial of the claims. The cases of IBWA Ltd. v. Umakalamba (supra), cited by respondent relevant this particular issue Akintola & Anor. v. Solano (supra) and Honika Sawmill v. Hoff (supra) are not relevant here since in the instant case, triable issues were raised by both parties in the pleadings and the appellants by their pleadings gave answer to or denied the allegations and did not really admit same. Now, even though I opined that the trial court was wrong in referring to the defendants averments in the statement of defence filed by the appellant, could it be correct to say that it could have arrived at different conclusion if it did not so referred or relied on them? I do not think so. This is so because as I remarked earlier, in the conclusion reached by the tlial court, it also relied on the evidence adduced in the suit by the plaintiffs especially PW5’s, the 2nd plaintiff and such evidence was nowhere challenged, controverted or debunked by any evidence from the defendants as none was led. See Musa v. Yerima (1997) 7 NWLR (Pt.511) 27, (1997) 7 SCNJ 109 at 123/124; Otuedon v. Olughor (l997) 9 NWLR (Pt.521) 355, (1997) 7 SCNJ 411 at 434; Akpule v. Agbeotu (1999) 9 NWLR (Pt. 621) 107 at 120; Osundu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt.625) 1, (1999) 7 SCNJ 1 at 16; Obmiami Brick & Stone (Nigeria) Ltd. v. ACB Ltd. (1992) 3 NWLR (Pt. 229) 260 at 293. The appellant did not adduce any evidence. The case was therefore fought based on the evidence of the plaintiffs alone which was not rebutted by the defence. My resolution on this issue, therefore, is that though the trial court was wrong in referring extensively to the statement of defence which is not backed or supported by evidence that mistake however would not affect the conclusion arrived at by it as it also more importantly relied on the evidence adduced in the case by the plaintiffs/respondents which was unchallenged, uncontroverted, unrebutted and uncontradicted.

Issue No.4

In the issue, the appellant is asking whether the learned trial Judge was right in granting leave to the plaintiffs/respondents to amend their statement of claim from a claim in local currency to one in foreign currency after conclusion of final addresses by parties counsel. The learned counsel for the appellant, after referring to the writ of summons and statement of claim filed along with it by the plaintiffs and the amended statement of claim posited that the relief sought in paragraph 38 had changed the claims made by the plaintiffs in that foreign currency was introduced by the plaintiffs in the pleadings, i.e., the amended statement of claim. According to the learned appellant’s counsel, by the court’s action, the appellant is over-reached. The learned counsel for the appellant submitted that though an amendment could be made at any time, it should not be aimed at over-reaching the opposite party. He cited the cases of Cropper v. Smith (1884) 26 Ch. D 700 at 710; Ojah & Ors. v.Ogboni & Ors. (1976) 1 NMLR 95 at 99; Foko & Ors. v. Foko (1968) NMLR 441; Jessica Trading Co. v. Bendel Insurance Co. Ltd. (1993) 2 NWLR (Pt. 271) 538; Onehi Okabia v. Mamudu Ajanya & Ors. (1998) 6 NWLR (Pt.554) 348, (1998) 5 SCNJ 95 at 104; Imonikhe v. A.-G., Bendel State (1992) 6 NWLR (Pt. 248) 396 at 412. He finally argued on this 4th issue, that the grant of leave to plaintiffs/respondents to amend their statement of claim in the surrounding circumstances, led to miscarriage of justice. He urged this court to answer the issue in the negative.

In response to the appellant’919191s counsel’919191s submission, the respondents’9191 counsel denied that by the amendment sought and granted new issue was introduced. He argued that right from the onset, the claim of the plaintiffs/respondents was anchored on the shortfall of ?616,019.36, which the appellant was obliged to refund. He referred to paragraph 10 of the particulars of claim. He submitted that the amendment was rightly allowed by the trial court as the latter can suo motu or on application by any of the parties allow amendment of pleadings at any stage of the proceedings even all appeal in as much as such amendment sought is aimed at bringing pleadings in line with the evidence as in this instant case. See Ojah & Ors. v. Ogboni & Ors. (supra); Foko & Ors. v. Foko & Ors. (supra); Osho v. Ape (1998) 8 NWLR (Pt. 562) 492 at 504; Shell Pet. Dev. Co. (Nig.) Ltd. v. Ambah (1999) 3 NWLR (Pt. 593) 1 at 10; Equity Bank (Nig.) Ltd. v. Daura (1999) 9 NWLR (Pt. 621) 147 at 64 and 71; U.B.N Plc. v. Dafiaga (2000) 1 NWLR (Pt. 640) 175 at 187. It was also submitted on behalf of the respondents, that since the law allows amendment of pleadings, it in the same token allows amendment of reliefs too. He argued that the appellant strengthened the case of the respondents during cross’919197examination by eliciting more evidence on the sum of ?616,019.36 awarded by the trial court hence it can not be heard to complain now. He concluded that there is no substance in the appellant’919191s argument, hence, the issue should be resolved against it.

Perhaps it will be apposite at this stage to reproduce the relevant portions of the alleged amendment on which the parties are canvassing. On page 11 of the record of proceedings of the lower court, the plaintiffs/respondents claimed the under-mentioned reliefs as per their original statement of claim filed along with the writ of summons. They claimed as below as per paragraph 35:-

“Whereof the plaintiffs claim from the defendant as follows:-

A. N80,082,516.00 as special damages. Particulars of special damages

(i) N80,082,516.00 being the current Naira equivalent of ?616,019.36 at the rate of N130.00 to ?1

(B) N4,917,484.00 as general and exemplary damages for defendant’s gross and palpable delay in remitting currency as well as inconveniences caused the plaintiffs.

(C) Costs of this action.”

Then on page 72 of the record of proceedings, the relief sought in the amended statement of claim is contained. Paragraph 38(B) of the amended statement of claim contained this relief:-

“A mandatory order compelling the defendant to pay the said sum of ?616,019.36 to the plaintiff or its naira equivalent at the rate of N130 to ?1, that is to say, N80,082,516 being money due and payable to the plaintiffs as the differential shortfall and/or special damages on the hospital equipment procured from Sartra International Limited.” (Italics mine).

The issue now is could it be said that the relief in the amended statement of claim amount to amendment of the relief contained in the original statement of claim? First of all, what is the meaning of ‘amendment’? The Blacks Law Dictionary, 6th Edition, Centennial Edition (1891 – 1991) defines amendment to mean:

“‘Amend – To improve. To change for the better by removing defects or faults. To change’ (See page 81 thereof).”

The word ‘amendment’ has been interpreted by the Supreme Court in the case of Chief Adedepo Adekeye & Ors. v. Chief Akin Olugbade (1987) 3 NWLR (Pt.60) 214, (1987) 6 SCNJ 127 at 135 per Oputa, J.S.C. thus:

“An amendment is nothing but the correction of an error committed in any process, pleadings or proceedings at law or in equity and which is done either as on course or by consent of the parties or upon notice to the court in which proceeding is pending.”

If one compares the relief sought in the amended statement of claim and that on the original statement of claim, one can say the former is more elaborate than the latter. It has improved on the former one as it is wider and more verbose. By a close consideration of the two reliefs, in my view, shows that they are more or less the same in con. Even if there is any difference between it, it would be on mere semantics. The original claim contains the relief sought in foreign currency or the Naira equivalent in the alternative. Similarly, the relief in the amended statement of claim also contain the reliefs sought in foreign currency or in the altemative the Naira equivalent.

The only difference which as I said earlier is on mere semantics in that further details are given as to the purport of the said claims while in the original statement of claim no such details or purport of the relief was given. Both claims or reliefs contain the foreign currency or the alternative the Naira equivalent. They also bear the same rate of conversion and the equivalent amount on the conversion. It is trite law that a court always has the discretion to grant leave for amendment of pleadings in as much as such amendment is meant to elicit the issues in controversy between the parties and that such amendment would remove possible injustice and in as much as the adverse party would not be overreached. See Ogidi v.Egbe (supra). Although a court has the discretion to grant permission for amendment, such discretion must however be exercised judicially and judiciously. It seems to me that the plaintiffs in their pleadings based their claims on the foreign currency or its Naira equivalent and in all the relevant averments specifically stated the foreign currency amount, i.e., ?616,019.36 or the Naira equivalent of N80,082,516 at same exchange rate. See paragraphs 10, 25, 27 and 32 of the original statement of claim. The equivalent exchange rate of N130 to ?1 is also stated in both pleadings. This is exactly what is contained in the amended statement of claim where the foreign currency amount of ?616,019.36 or its Naira equivalent of N80,082,516, which was also claimed in the alternative. On evidence led in support of the averments in the pleading led by the plaintiffs, I am of the view that evidence was also led to establish the claim in the two alternatives, i.e., foreign or local currencies. It is settled law that no amendment of pleading would be allowed by the court if such will overreach an adverse party. In the result, I am of the firm view that the trial Judge was right in allowing the amendment because amendment allowed by the trial Judge could not have overreached the appellant. Perhaps it could be otherwise if the amendment was in such a way that only the foreign currency was mentioned without including the local currency equivalent. Such could be said to be calculated to aim at overreaching the appellant since the original claim contained the Naira equivalent in the alternative. Or if the new relief in the amended statement gave a higher or lower rate of conversion from local to foreign currency. Or even in a situation where only the foreign currency relief was claimed alone without the Naira equivalent. This brings me to the reliefs ordered or granted by the learned trial Judge.

On page 224 of the lower court’s record of proceedings the learned trial Judge in the concluding part of his judgment had this to say:

“On the whole, the plaintiffs claim against the defendant succeeds. I enter judgment for the plaintiffs as follows:

(a) The defendant shall pay the plaintiffs the sum of ?616,019.36 as specified in exh. 15 …”

I think the above remark/finding of the learned trial Judge is what triggered the controversy or complaint by the party. In my view, if there could be any aspect of overreaching the defendant, it is on this particular point or relief awarded by the lower court. The claim/relief sought by the respondents in their amended statement of claim clearly shows they were claiming the sum of ?616,019.36 against the defendant or its Naira equivalent at the rate of N130 to ?1, that is to say, N80,082,516… By such claim, the plaintiffs could be satisfied with either of the two. That is to say, the ?616,019.36, i.e., in foreign currency or the Naira equivalent of the said ?616,019.36 which is N80,082,516. To my mind, the trial Judge could have also in his conclusion included the Naira equivalent as claimed by the plaintiffs. But for the court to order the payment of ?616,019.36 simpliciter only without including the Naira equivalent on which evidence was led in support of the pleading and the relief at the trial, the court’919191s order which will definitely over’919197reach the appellant. Such order by the trial court is in my view perverse. It is trite law that an appellate court has no business interfering with the decision of a trial court except in situation where the decision is perverse, or evidence wrongly evaluated or not properly evaluated or not evaluated at all. See Musa Sha Jnr. & Ors. v. Da Rap Kwan & Ors. (2000) 8 NWLR (Pt. 670) 685 at 704; Akilu v. Opaleye (1974) II SC 189; Woluchem v. Gudi (1981) 5 SC 291; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Awoyale v. Ogunbiyi (No.2)(1986) 2 NWLR (Pt. 24) 626. In the instant case, as I said earlier, the evidence led support the claim on the special damages in either the amount in foreign currency as well as the Naira equivalent. It would serve the interest of justice the more if the lower court had awarded the relief as claimed rather than simply restricting the grant of the relief to the amount claimed in foreign currency only as that was not the exclusive relief sought by the plaintiffs. I think this is a clear example of a situation where this court should and indeed must interfere with or disturb the order made by the lower court regarding the first award. To that effect, I accordingly slightly amend the award of special damages in which the relief sought in the amended statement of claim so that the defendant/appellant should have the option to either pay the plaintiffs the sum of ?616,019.36 or its Naira equivalent at the rate of N130 to ?1, as at the time the suit was filed, that is to say N80,082,516 being the differential shortfall.

The learned counsel for the appellant complained that there was no evidence led on the exchange rate of N130 to ?1. I do not agree with him on that. The exchange rate was adequately pleaded and there is evidence led through PW5 to that effect. That piece of evidence had not been challenged in any respect by the defendant/appellant since it did not lead any as at that moment. There is therefore no contrary rate adduced by the defendant. The trial court is, therefore, light in accepting and relying on that only rate in its judgment. Before I am done with this issue, I must say with due deference to the learned appellant’9191s counsel, that this case is distinguishable from the case of Jesicca Trading Co. Ltd. v. Bendel Insurance Co. Ltd. (supra). In that case, the amendment sought was to change the relief claimed from damages in Naira to damages in dollars. The Supreme Court refused the amendment because the effect would amount to changing the nature of the entire claim. Sequel to that, Kutigi, J.S.C. had this to say at page 249:

“The applicant is also now seeking to amend the figures N319,884.19 wherever they appear in paragraphs 38 and 39 of the statement of claim to read ‘$207,250.50 plus 10% interest’ …I am clearly of the view that it will amount to changing the nature of the claims if the applicant is now allowed to effect the amendments sought above (See Foko v. Foko (supra). The action founded on contract is now being expanded to include an action in negligence as well. The claims of the applicant will now be partly in Naira and partly in foreign American dollars instead of the Naira as originally claimed. There will also now be an added claim for general damages. Here again, my view is that having regard to the facts that the three witnesses who testified for the plaintiff and the single witness who testified for the defendant gave their testimonies in the local currency, the Naira, the proposed amendments if granted will be useless because they will be inconsistent with those testimonies of witnesses on which both the plaintiff/applicant and the respondent fought the case. (See Oyenuga v. Provisional Council of the University of Ife (supra).”

Conversely, in the instant case, both the original and amended statements of claims the claim was pounds in or its Naira equivalent. The amount of exchange rate and the equivalent in local currency (Naira) were all contained in both statement of claim. Similarly, evidence led was not at all restricted to the foreign currency. It both introduced the equivalent in Naira at the approved rate. Also, the relief sought in the amendment was not partly on Naira and partly in foreign currency as in Jesicca’s case. In my view, Jesicca’s case is not applicable to the instant case. I am of the view that there is nothing wrong with the amendment if one may call it so. It did not change the original claim at all since both options were included and evidence was led in support of both currencies. Rather, it is the order/award of the relief made by the trial court simply restricted to the foreign currency alone, that can be said to be inconsistent with both the relief sought and the evidence led by the plaintiff which if allowed to stay or is untempered with will over-reach the appellant. This, in my view call for this courts interference with the same by giving option for payment of the equipment specified amount in Naira as reflected in the amended statement of claim. In view of the above, this issue is partly resolved in favour of the appellant.

Issue No.6

This issue has to do with the award of N3.5million to the respondents for ‘919191unfair treatment’919191 in addition to the award of ?616,019.36 representing their actual loss. The learned counsel for the appellant submitted that having awarded the sum of ?616,019.36 as the respondents actual loss, it should not have awarded the sum of N3,500,000 as damages because that amounted to double compensation and thus, not permissible. He cited the case of Hardlan Hadley v. Bakandele (1954) 9 Ex. Ch. 341; Ganiyu Badmus & Anor. v. A. O. Adegunde (1999) 11 NWLR (Pt.627) 493, (1999) 7 SCNJ…; Artra Industries (Nig.) Ltd. v. N.B.C.I. (1998) 4 NWLR (Pt.546) 357, (1998) 3 SCNJ 97 at 130. He argued also that there was no proof of any ‘919191unfair treatment’919191. He urged this court to refuse the award of N3.5million made in favour of the respondents. In reply, the respondents counsel submitted that the respondent adduced uncontroverted and unchallenged evidence in support of the claim of N4,917,484 as exemplary damages they suffered as a result of culpable negligence on the part of the appellant in remitting the foreign exchange. He said such award of N3.5million by the trial court did not amount to double compensation. See CCB (Nig.) Ltd. v. Onwuchekwa (1998) 8 NWLR (Pt. 562) 375 at 398.

In order to justify the award of N3.5million it made, the trial court made the following findings:

“On the payment of N4,971,484.00 as damages for breach of contract, I feel that this payment is distinct from the payment of ?616,019.36 to Sartra International Ltd. Exhibit 15, complained of ‘919191unfair conduct’919191 of the defendant towards the plaintiff. PWS gave evidence of the trial he took to convince the defendant to settle the undebtedness of ?616,019.36 but in vain. I am of the opinion that any payment of damages awarded to the plaintiffs arising from the unfair conduct towards them by the defendant will not amount to payment of double compensation.”

Owing to diminutive value of the Naira and the period when acts complained of took place, I feel that awarding the plaintiffs the sum of N3,500,000.00 will not be too small or too big as damages on account of all they went through in the hands of the defendant.”

I think it will be pertinent to say that, the claim of ?616,019.36 and the one of N4,491,484.00 are two distinct heads of claim. The first one represents differential shortfall which is special damages which is also an indebtedness. On the other hand the latter claim of N4,491,484 represents general and exemplary damages the claimant suffered due to the delay on the part of the appellant in remitting the foreign exchange. While the former must be specifically pleaded and strictly proved, the latter is awardable once pleaded with slighted proof by the claimant. To me, whether the said claim of general damages is referred to as for ‘919191unfair treatment’919191 or anything else is a matter of semantics. The important thing is, is the court justified in granting such general damages? It is trite law that general damages need not be specifically proved as it may be inferred from the circumstances surrounding the case. A court has a discretion to decide what amount it should award as general damages having regard of course to the sufferings by the claimant or humiliation or injuries suffered. I think before the trial court decided to award the N3.5 million, it had considered all these factors. The fact that it had awarded ?616,019.36 which in any case is special damages does not preclude it from also awarding the N3.5 million which is simply a general or exemplary damages. It also did not amount to double compensation. It is not the law that where special damages is awarded, general would not be awarded. Each award is dictated by the evidence adduced as well as the surrounding circumstance of the case.

It is even my considered view that the appellant is even not competent to frown at the award of general damages since he neither led any evidence to challenge same nor did it lead evidence to show that the sum of N3.5 million awarded was excessive. The only evidence adduced in the case was simply that adduced by the plaintiff which was not contradicted, challenged, controverted or debunked. The appellant is also not a cross-appellant but is simply a counter-claimant. Before an appeal court tampers with award of damages made by a trial court, it must be established by a complainant that such award, was either too excessive, or too low or that such award was not made in keeping with claim or pleaded by the claimant in violation of a principle of law see case of Sabru Motors Ltd. v. Rajab Enterprises (2002) 7 NWLR (Pt. 766) 243. In the instant case, I am convinced that the trial court was justified in making the award of the N3.5 million in favour of the respondents as general or exemplary damages. I am unable to see any reason why such award should be disturbed. I answer the question posed in this 6th issue, for determination in the affirmative.

In conclusion, I have resolved all the issues I have discussed in favour of the respondents against the appellant except of course this court has course to interfere with the first award made by the trial court on payment of ?616,019.36 alone. It is hereby slightly amended to include option of payment in local currency (Naira) equivalent of N80,082,516.00 to the respondents by the appellant as reflected in the reliefs sought both in the original and amended statement of claim. As a corollary, I hold that the appeal lacks merit and dismiss all the grounds raised except with regard to in the first award for payment of ?616,019.36 in foreign currency. An option of payment of equivalent in Naira of N80,082,S16 as claimed in the relief sought is hereby given. Costs follows event. A sum of N10,000.00 is hereby awarded against the appellant in favour of the respondents.

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Other Citations: (2004)LCN/1567(CA)