3PLR – FIRST BANK OF NIGERIA PLC V. ASSOCIATED MOTORS COMPANY (NIGERIA) LIMITED

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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FIRST BANK OF NIGERIA PLC

V.

ASSOCIATED MOTORS COMPANY (NIGERIA) LIMITED

COURT OF APPEAL

(PORT HARCOURT DIVISION)

CA/PH/67/93

FRIDAY, 17TH JULY, 1998

3PLR/1998/45  (CA)

OTHER CITATIONS

10 NWLR PART PG 441

 

BEFORE THEIR LORDSHIPS:

ALOYSIUS IYORGYER KATSINA-ALU;

SAMSON ODEMWINGIE UWAIFO;

SYLVANUS ADIEWERE NSOFOR.

 

REPRESENTATION

J.C. Nwadi ESQ. – for the Appellant

Respondent unrepresented

 

MAIN ISSUES

ACTION – Cause of action – Breach of contract – Plaintiff suffering no loss as a result of breach – Whether suit discloses cause of action.

ACTION – Negligence – How pleaded and proved – Where negligence has been established – Need to still prove injury resulting therefrom.

APPEAL – Grounds of appeal – Omnibus grounds of appeal – Nature and import of – What Court of Appeal should consider in deciding issue arising therefrom.

COMMERCIAL LAW – CONTRACT – Negligence of party to contract – Liability therefor – When can be excluded by exemption clause contained in contract – Relevant considerations.

PRACTICE AND PROCEDURE – DAMAGES – Breach of contract – Where plaintiff established that he suffered no injury as a result – Whether damages can be awarded.

INTERPRETATION OF STATUTE – INTERPRETATION OF DOCUMENT- Exemption clause contained in contractual document – Interpretation of – Guiding principle.

LEGAL SYSTEM – Nigerian Judges – Dual capacity of.

Issues:

Whether the judgment of the trial court was against the weight of evidence.

1. Whether the respondent had any cause of action against the appellant and was there sufficient evidence to prove negligence against the appellant?
2. Whether there was proper basis for the award of N200,000.00 (two hundred thousand naira) as general damages to the respondent.
3. Whether the trial court misdirected itself as to the proper construction and import of section 148(d) of the Evidence Act thereby coming to a wrong conclusion.
4. Whether the trial court placed a proper construction on appellant’s Exhibit No. 6, i.e. the exchange risk indemnity.

Facts:

The respondent in July, 1981 paid the sum of N30,489.75 to the appellant bank at its Aba branch to be remitted to Servisol Ltd., a company in England. This amount was meant to cover the cost of a consignment of 18,000 units of a brand of fire extinguisher. In connection with this import transaction, the respondent submitted to the appellant the following documents to wit:

(a)     exchange control copy bill of entry No. CO 28757/200534 of 6/7/81;

(b)     tax clearance certificate for 1981;

(c)     original and photostat Form “M” CBN No. 148020; and

(d)     insurance certificate.

The appellant’s Aba branch claimed that it forwarded the said documents to its International Division of the head office in Lagos on 2nd September, 1981. However between Aba and Lagos, there was some inability to explain the whereabout of the documents.

Against this background, there was delay in obtaining the approval of the Central Bank of Nigeria (CBN), for remittance of the money to England. Later the appellant wrote to the respondent to say that the remittance was no longer possible because the CBN stopped “verification/reconciliation of pre-second tier foreign exchange market trade debts”. The particular document that was said to have caused the delay was the current tax clearance certificate.

Due to the delay, the consignment could not be paid for vide the pre-Second tier Foreign Exchange Market (SFEM) rate which was considerably lower and more favourable to importers than what later obtained. The respondent was only able to provide another tax clearance in November, 1989 while the Central Bank of Nigeria (CBN) had already stopped the pre-SFEM rate in April, 1989. According to the respondent, the pre-SFEM conversion rate of N30,489.75 which it paid to the appellant was £23,810.00 (sterling). The respondent took out a writ against the appellant making a total claim of N1 million (one million naira) representing the following:

(i)      N310,422.89 being the equivalent of £23,810.00 at the then rate of N13.0375 per £1.00;

(ii)     N689,577.11 general damages for breach of contract and/or negligence.

The respondent also claimed an interest of 25% on the sum of £23,810.00 or its naira equivalent from 27/7/8 1 until date of judgment.

At the address stage the counsel for the appellant raised the issue that the respondent’s case was statute barred. His argument was that the appellant admitted the loss of the documents since 1981-1983 while the respondent only sued in 1990.

After hearing the matter, the trial High Court found for the respondent and made an award in the following heads:

(i)      N30,487.75 being the amount the respondent paid to the appellant towards the import transaction.

(ii)     (N200,000.00 general damages for negligence.

(iii)    Interest at the rate of “N10 (ten naira)per centum per annum” from 12 June, 1991 until final liquidation of the judgment sum.

The court awarded costs of N1,000.00 to the respondent also.

Being, dissatisfied with the judgment of the High Court, the appellant now appealed to the Court of Appeal. The appellant contended inter alia that the exchange risk indemnity given by the respondent to the appellant during the transaction contained an exclusion clause, exempting the appellant from responsibility in case of any delay in obtaining the foreign exchange. It was its argument that the document which was received in evidence as Exhibit 6 was not properly construed by the trial High Court.

 

MAIN JUDGEMENT

Held (Allowing the appeal on a majority of 2 to 1, Nsofor, dissenting):

1. Each exemption clause in a contract must be considered according to its actual wording, and must be seen to clearly extend to the exact contingency which has occurred if it is to protect the party relying on it. Thus, a party relying on the clause “unforseen contingencies excepted” is required to show that these have made performance of the contract totally impossible, not merely impossible in the way originally intended by him, for example, in supply contract, by the intended source of supply proving impracticable, if it is possible to obtain the goods elsewhere.
2. The maxim “verba chartarum fortius accipiuntur contra proferentem ” literally means that words of charters are to be received more strongly against the grantor. This means that the words of a written document are to be construed more strongly against the grantor or maker if there is ambiguity. Thus where a clause is capable of wide interpretation or alternative readings or is not free from obscurity, the “contra proferentem” rule still apply. Therefore, a party seeking to deny the applicability of an exemption clause will often be assisted by this rule to the effect that the words of written document are to be construed more strongly against the grantor or maker thereof if there is an ambiguity. In the instant case, the exemption clause is ambiguous as to the source of the delays sought to be excluded from liability and/or by whom caused. In addition, what happened in this case is not only that the appellant delayed in transmitting the respondent’s deposit to its overseas customer but there is a total failure to act to ensure the remittance. Therefore, the exclusion clause herein does not only have a limited scope but also is ambiguous and to that extent the rule of contra proferentem should apply.
3. Where a plaintiff is suing for the tort of negligence, the particulars of negligence need to be set out in the pleading. It would then have to be proved that:

(a)     the defendant owed the plaintiff a duty of care;

(b)     there was a breach of that duty;

(c)     the said breach caused damage to the plaintiff

[Agbonmagbe v. CFAO (1966) 1 All NLR 140 at 145 referred to]

4. Where an action is founded on tort of negligence and it has been proved that the defendant owes a duty of care to the plaintiff, yet, it should be proved that there is a damage that can be compensated in money suffered by the plaintiff. In essence, the law abhors a situation of damnum abseque injuria i.e. a loss which does not give rise to an action for damages against the person causing it. In the instant case, even if the nature of the action was founded on the tort of negligence, and the appellant owed the respondent a duty of care to ensure that the documents submitted for the purpose of remitting funds to the suppliers of the goods in question in England were not misplaced but processed for that purpose and that there was a breach of that duty, no damage of any meaning that can be compensated in money was suffered by the respondent from what is known from the evidence.
5. Where as in the instant case, a banker fails to remit a customer’s money meant for an overseas business, that will amount to a breach of contract due to negligence. The nature of the action is not founded on the tort of negligence.
6. Damages arising from breach of contract are in the nature of special damages. A plaintiff who alleges damages arising from a breach of contract must plead and particularise same. Thus, where a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him to compute a payment into the court.
7. In pleadings, it is required that special damages must be specifically pleaded. If not admitted by the opposing party, they must be strictly and distinctly proved in the sense of evidence which leads itself easily to quatification or assessment. [WASA v. Kalla (1978) 3 SC 21 referred to].
8. Special damages consists in all items of loss which must be specified by the plaintiff before they may be proved and recovery granted. The basic test of whether damage is general or special is whether particularity is necessary or useful to warn the defendant of the type of claim and evidence, or of the specific amount of claim, which he will be confronted with at the trial.

DISSENTING OPINION OF NSOFOR

Per NSOFOR

1. I decline to formulate the issue that came on for trial in the terms either of contract or its breach or, in the terms of negligence, forms of action the pleadings severally employed. But why not? Because so to do immediately puts me in mind of Maitland: ‘Forms of action are buried but still they rule us from the grave’. But why the government of the living by the dead. Speaking for myself, I do not like it. Why not the dead ever remain in the silent cold comfort of their graves! And we have ever since moved to and accepted as settled the principle: ‘ubi jus, ibi remedium’. Therefore, provided there be a ‘dammun cum injuria’, a legal wrong, occasioned by or suffered in the ‘1981 transaction’ f the parties herein, then ‘ex necessitate’ there ought flow therefrom a ‘remedium’ i.e. compensation even though it be nominal. Why? Because there was an injuria or legal wrong.”
2. When an injuria or legal wrong has been established there ‘ought to be some compensation even if minimal.
3. “Norminal damages” is a technical phrase which means that you have negatived anything like real damages but that you are affirming by your nominal damages that there is an infraction of a legal right which gives no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. So, the term norminal damages does not mean small damages.
4. The principle upon which damages are to be assessed or are assessed does not depend upon the form of action at all. The duty of the court is to award damages adequate for the injury suffered so far as they can be compensated for the injury and to help the parties and others to arrive at a fair and just figure.
5. “Damages- connotes and denotes compensation. Where a party suffered special damages, the law allows so to claim. A party who suffers “general damages” may recover general damages only. “General damages” are not inferred. They are at large. While special damages must be proved strictly. [Oshinjinrin v. Elias (1970) 1 All NLR 153 referred to].
6. Whether an assessment of damages be by a trial judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded by the trial court even though it would have awarded a different figure, if it had tried the case at the first instance. Even if the tribunal of first instance is a single judge sitting alone, yet before an appellate court can properly intervene or interfere, it must be satisfied that either the judge in assessing the damages applied a wrong principle of law such as taking into account irrelevant factors or leaving out of account some relevant one, or, short of this, that the amount is either so inordinately low or inordinately high that it must be a wholly erroneous estimate of the damage.
7. When, on a proper direction, the quantum of damages is ascertained by a jury, the disparity between the figure at which they arrived and the figure at which they could have properly arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a Judge sitting alone. The figure must wholly be out of proportion. [UBN v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421),558 referred to].
8. A party appealing against damages should specify with particularity the wrong principle of law alleged if he wished argue that the judge acted on a wrong principle. In the instant case, the appellant did not specify the wrong principle of law which the trial court relied upon to make the award of damages complained about.
9. The quantification of general damages in money terms is a matter for the court i.e. the jury under proper direction by the judge or by a judge acting as the jury where the trial is without a jury. In a majority of cases no precise measure can be indicated. General damages are such as the jury may give when the judge cannot point out any measure by which they are to be assessed except the opinion and judgment of a reasonable man.
10. Notwithstanding that the Court of Appeal is always reluctant to interfere with an award of damages made by the trial court unless the award made is excessively high or unreasonably low, there are, certainly, no special criteria whereby the Court of Appeal is to judge what is excessively high or unreasonably low. This is because the question of damages is always a difficult question or problem which the law or judge has to face
11. Per NSOFOR

“Writing at page 52 of the record of proceedings the learned trial Judge expressed himself thus:-

“InB.P.P.C. v. Gwagwada(1989)4NWLR(Pt.116) 439 at 456 the court in circumstances of this nature may have resort to inflationary trnds currently in vogue at the time the action: as instituted or thereafter as the case may be’

The Benue Printing and Publishing Corporation v. Alhaji Umaru Gwagwada case (supra) relied on by the court below is a decision of this court (Coram: Maidama, Mukhtar and Adio, JJ.C.A.). I have read the case with some profit. Part of the decision dealt with the cross-appeal by the successful respondent in the trial court. The cross-appellant was dissatisfied with the award to him of N10,000.00 as damages.

The Court of Appeal, per Mukhtar, J.C.A. delivering the leading judgment said, inter alia:-

`I have no iota of doubt in my mind that the award of N10,000.00 should be reviewed and increased.’ That court made the award of N35,000.00. In reaching its decision that court expressed itself at page 456 inter alias:

`Moreover, the inflationary trend presently existing, coupled with the fast dwindling purchasing power of the naira must also he examined and considered closely’

My Lords, the Gwagwada case (supra) was decided, needless stating the obvious, in 1989. The case giving rise to the present appeal was decided, again 1 am stating the very obvious, on the 11/6/91. Speaking for myself, my Lords, unless we divorce ourselves from reality and facts, it is a far cry to ever contemplate that the economy has improved since the decision in the Gwagwada case. No. On the contrary, the economy is much more depressed; the naira has lamentably shamefully depreciated and inflation is spirally very high. My Lords, these are notorious factual situations in the country presently. I am thus enabled, my Lords, to say that 1 find no justification to interfere with the award of the general damages by the learned trial Judge.”

12. A cause of action is defined as a bundle of aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognised by law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right. This means in essence that when every fact which is material to be proved to entitle the plaintiff to succeed or all those things necessary to give a right to a relief in law or equity have occured, a cause of action is said to have accrued to the plaintiff.
13. The general principle of law is that where the law provides for the bringing of an action within a prescribed period in respect of a cause of action, accruing to the plaintiff, proceedings shall not be brought after the period prescribed by the statute or the decree. An action brought outside the prescribed period offends the section of the law and does not give rise to a cause of action. [Obieflina v. Okoye (1961) 1 SCNLR 144 referred to].
14. In ascertaining whether an action is statute-barred, the following steps should be taken:

(i)      seek to know when the cause of action accrued to, the plaintiff;

(ii)     check from the writ of summons for when the suit was instituted; and then

(iii)    ascertain from the statute or decree in question what period of time it prescribes to bring the action.

If the action was commenced outside of the period prescribed by the Limitation of Action Act or legislation, then the action is statute barred. In the instant case, the action was not statute barred as at 1990, when the matter was instituted because when the appellant wrote its letter dated 19th January, 1987 (Exhibit 3) imploring the respondent to provide the bank with!’ tax clearance certificate to enable the appellant apply for foreign exchange with the view to remitting the respondent’s bill, the appellant regarded the transaction still potent and executory even though it was between 1981 and 1983 that the appellant admitted the loss of the respondent’s shipment documents.

15. A party seeking to raise objection to a suit based on limitation of action under the limitation legislation has two options procedurally to raise the plea. It may, after the service on it of the writ of summons and the statement of claim raise the plea by an action i.e. motion on notice, or the party can raise it in its statement of defence. In either case, the point will be taken in limine. If successful, then the matter ends there and then. In the instant case, the appellant did not adopt any of those, two methods. It cannot on appeal raise the plea not having done so at the trial stage except at the addresses stage.
16. While an ouster clause is directed towards the court and seeks to deprive the court of its legal authority, jurisdiction, stricto sensu, to entertain any particular matter or suit, a limitation of action legislation is directed, not to the court itself, but to the litigant – the plaintiff himself. The legislation places a bar against him. Notwithstanding that he may have a good cause of action against the defendant, the limitation law impresses upon him that his time to sue the defendant is all over. This means that the plaintiff cannot sue no matter what cause of action he has, a fortiori. No question of whether or not he pleaded particulars of negligence or gave sufficient evidence in proof of negligence as in the instant case would ever arise. The plaintiff, ought firstly, to be in court, sue before he proffers evidence in proof of any claims or issues.
17. Per NSOFOR

“Q: – Was the respondents’ case as pleaded based on any delays within the context of Exhibit 6 (supra)? If it be not, can the appellants seek for an exemption from liability therefrom?

I did touch on this aspect of the matter earlier on somewhere in this judgment. Perhaps not full enough or rather imperfectly. I shall, however, decline to repeat myself, “etiam atque etiam” again and again.

The terms of Exhibit 6 (supra) are clear. They are expressed in simple English It deals with the responsibility for any delays in obtaining foreign exchange from The Central Bank of Nigeria Ltd and remitting same to the respondents’ suppliers. In my opinion, to construe Exhibit 6 in the manner counsel for the appellants would want me to do, certainly, would amount to overlooking the facts on which the plaintiffs’ case at the trial was hoisted. And even the defence of the appellants as pleaded! I confess that 1 found none of the decided cases cited to us by counsel in the appellants’ brief of any assistance. What was the trial court’s handling of the issue? The learned trial Judge at pages 51/52 of the record of proceedings had written, inter alia, as follows:-

“The exchange risk indemnity dated 27/7/81 defendant’s Exhibit No. 6, in my view did not exonerate the defendant from liability in this matter…The claim was not based on delay on the part of the defendant but specifically on negligence and/or breach of contract.”

The above conclusion by the learned trial Judge, in my judgment, is flawless. I agree with him wholly and entirely.”

18. By virtue of section 139 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. Such a party must discharge the onus by proving through evidence which will convince the court or tribunal of the probability of his case on the point in issue. In the instant case, the appellant having alleged scarcity of foreign exchange in the Central Bank of Nigeria (CBN), as a reason for not remitting the deposit to the oversea suppliers of the respondent, the evidential burden laid on the appellant to so prove. This it failed to do. DW 1 which gave the said assertion in favour of the appellant was not an official of the CBN and his evidence could not be proof of scarcity of foreign exchange in the CBN between 1981 and 1988 as alleged. [Odiete v. Okotie (1972) 6 SC 83;Akiiifosile v. Ijose (1960) SCNLR 447 referred to].
19. Relevancy, admissibility of evidence and proof are separate and distinct departments in the law of evidence. Admissibility of evidence is one thing. Its cogency or probative value is quite another thing. Once evidence is admitted, the court will then consider what weight to attach to it. What it proves in the context of the issue in controversy between the parties is for the jury to determine.
20. By virtue of section 149(d) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990, the court of trial is entitled to presume that any evidence which could be and is not produced would if produced be unfavourable to the person or party withholding it. In this case, since the appellant failed to discharge the burden of proof placed on it by failing to call evidence from the Central Bank of Nigeria to prove the alleged scarcity of foreign exchange between 1981 and 1989, then section 149(d) of the Evidence Act could be invoked against it.
21. The court before applying section 149(d) of the Evidence Act, must be satisfied as to the following:

(i)      that the evidence exists;

(ii)     that it could be produced;

(iii)    that it has not been produced;

(iv)    that it has been withheld.

The above go to show that for section 149(d) Evidence Act not to apply, the party alleging a fact ought to discharge the burden placed on him under section 139 of the Evidence Act. [Tewogbade vs. Akande (1968) NMLR 404 referred to]

22. A piece of evidence by a party does not become “unchallenged” or “undiscredited” merely because the adversary did not cross-examine the witness on that evidence. No. If on a given issue, one party offers a version of evidence in support of an assertion and the opposite party, on the same point or subject matter, offers a version of evidence opposite to that version, then, immediately, there occurs a challenge.
23. A piece of evidence given by a witness on a given point or subject matter or an issue may be said to stand “unchallenged” if there be no other evidence by the adversary on the same issue or subject-matter. Once there are two conflicting versions of evidence on a given point there is a dispute on that point. One version of the evidence cannot be said to stand “unchallenged”
24. An omnibus ground of appeal implies that the judgment of the trial court cannot be supported by weight of evidence adduced by the successful party which the trial court wrongly accepted, or that the inference drawn or conclusion reached by the trial court, based on the accepted evidence, cannot be justified. It also implies that there is no evidence which if accepted would support the finding of the trial court. Therefore, an omnibus ground is no more than an attack on the findings or a finding of fact by the court of trial or tribunal. [Enang v. Adu (1981) 11-12 SC 25; Anyaoke v. Adi (1986) 3 NWLR (Pt.31) 731 referred to].
25. In deciding upon an issue relating to omnibus ground, it may be relevant to consider whether the trial Judge was right in giving credibility to the testimonies of the witnesses called by the successful party. If the credibility was wrongly given, then, that would affect the cogency given to the testimonies. This consideration is needful because a case is, ultimately, decided based on the totality of the evidence adduced before the trial court.
26. The evaluation of evidence, credibility of witnesses and the ascription of probative value to any evidence are within the exclusive province of the court that sees, hears and believes – the trial court. Therefore, if there be any evidence to support a particular conclusion of the court of trial, an appellate court, which would have come to a different conclusion on the same evidence should restrain itself and respect the conclusion of the court that saw and heard the witnesses. [Ebba v. Ogodo (1984) 1 SCNLR 372 at 378; Odofin v. Ayoola (1984) 11 S.C. 72 referred to]
27. To succeed in an appeal against the findings of fact, the appellant must show that in the performance of its primary duties of appraisal of oral evidence and ascription of probative value to such evidence the court of first instance made an imperfect use or improper use of the opportunity of hearing and seeing the witnesses or has drawn wrong conclusion from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support. In the instant case, the inference or deduction made by the trial court is reasonably sound. It is flawless based on the admitted facts. Therefore, there is no justification to interfere with its finding.
28. An appeal is a continuation of the original suit, not an inception of a new suit.
29. The jury are judges of facts, in matters of facts. However, under the Nigerian legal system, judges sit in a dual capacity as judges of law in matters of law and jury in matters of fact.
30. In cases of defamation, the law implies “damage” i.e. injuria in favour of the party allegedly defamed.

Lead Judgment Delivered by Uwaifo JCA
This is a rather curious case but it is, in my view, very simple to resolve. The plaintiff/respondent, as customer of the defendant/appellant bank, paid the sum of N30, 489.75 to the said bank’s branch at Aba to be remitted to a company in
England known as Servisol Limited. This was in or about July, 1981. It was meant to cover the cost of a consignment of 18,000 units of a fire extinguisher known as Rapid fire Extinguisher Assembly 640 GMS to be shipped to the respondent in
Nigeria.

In pursuance of this import transaction, the respondent submitted to the appellant four documents, namely, (1) exchange control copy bill of entry No. CO 28757/200534 of 6/7/81, (2) tax clearance certificate for 1981, (3) original and Photostat Form ’M’ CBN No. 148020, and (4) insurance certificate. It is pleaded in para. 5 of the amended statement of claim that these documents were made available to the appellant by the respondent under cover of a letter dated 3 August, 1981 for the purpose of the remittance of the money to the overseas suppliers.
The appellant’s Aba branch, as alleged by the appellant, forwarded the documents to its International Division of the Head Office I Lagos on September, 1981 together with the said money. It would appear that between Aba and Lagos, there was
some inability to explain the whereabouts of the documents in question. On more than one occasion the respondent was requested to forward one of the documents or other so that foreign exchange approval of the Central Bank of Nigeria could be
obtained in order to remit the money to England. The particular document which was said to have caused the delay was the current tax clearance certificate.
If the remittance had been done in time, the consignment would have been paid for in what is called, in short, pre-SFEM rate i.e. pre-Second Foreign Exchange Market rate. That rate was considerably lower and more favourable to importers than what
later obtained. In April, 1989, it is said that the Central Bank of Nigeria stopped the pre-SFEM rate. The respondent was able to present another tax clearance certificate in November, 1989 by which time it was too late for it to be of any use for the pre-SFEM rate. The respondent claimed that the pre-SFEM conversion rate of N30, 489.75 which it paid to the appellant was £23,810.00.

The respondent therefore took out a writ of summons on 24 April, 1990 and in its amended statement of claim sought the
following reliefs:

“WHEREFORE, the plaintiff has been damnified in consequence and claims from the defendant the sum of N1 million (one million naira) made up as follows: –

422. The sum of N310, 422.89 being the equivalent of £23,810.00 at the current rate of exchange at N13.0375 per £1.00 (sterling).
423. N689, 577.11 being general damages for breach of contract and or negligence in failing to remit the said sum to
     plaintiff’s beneficiary, Servisol Ltd., England.

iii.      25% rate of interest per annum on £23,810 or its naira equivalent payable from the date of deposit 27/7/81 until date of judgement.”

In a reserved judgement delivered on 11 June, 1991 at the High Court, Aba, Chinakwalam, J., gave judgement for the respondent for (1) the sum of N30, 487.75 which the respondent paid to the appellant towards the import transaction, (2) N200, 000.00 being general damages for negligence, and (3) interest at the rate of “N10 (ten naira) per centum per annum” from 12 June, 1991 until the total judgement debt of N230, 489.75 is paid in full. Costs of N1, 000.00 were awarded to the respondent.

The appellant challenges this judgement and seeks a determination of the following five issues:

“1.     Whether the judgement of the court below was against the weight of evidence.

2. Whether plaintiff had any cause of action against the defendant and was there sufficient evidence to prove negligence
   against the defendant.
3. Whether there was proper basis for the award of N200, 000.00 (two hundred thousand naira) as general damages to the
   plaintiff.
4. Whether the learned trial judge misdirected himself as to the proper construction and import of section 148(d) of the Evidence Act thereby coming to a wrong conclusion.
5. Whether the learned trial judge placed a proper construction on defendant’s Exhibit No. 6, i.e. the Exchange Risk Indemnity.”

think issue 5 may be conveniently dealt with first as it appears to hold the ace whether or not to consider the other issues.
The said Exhibit 6 provides:

“I/We also acknowledge that neither you nor your agents shall be responsible for any delays in obtaining such foreign currency from the Central Bank of Nigeria or any delays in remitting same.”

As will be admitted, this is an exemption clause in a contractual relationship. This exemption clause was meant to protect the appellant. The question is, what does it really mean, or in other words, what is the extent of the clause? The question is, what does it really mean, or in other words, what is the extent of the clause? There are certain relevant rules of construction of exemption clauses. Those that are necessary to be referred to in the present case are four in my opinion. A close examination of the said exemption clause, leads to the following posters: delays caused by whom? Are they delays due to negligence or done deliberately?

It seems to me somehow that the words of the present exemption clause are too general and appear ambiguous. So going by the first rule of construction, it is said that mere general words in an exemption clause do not ordinarily absolve the party
seeking to rely on the exemption from liability for his own negligence or that of his employees: see London & North Western Railway v. Nelson (1992) 2 A.C. 263 at 266. Thus where barge owners excluded liability “for any loss of or damage goods
which can be covered by insurance” it was held that such words did not cover loss or damage due to their negligence: see Price and co. v. The Union Lighterage Co. (1904) 1 K.B. 412. So also where garage owners stated that they were “not
responsible for damage caused by fire to customers’ cars on the premises”. They were not protected against their negligence:

see Hollier v. Rambler Motors (A.M.C.) LTd. (1972) 2 Q.B. 71.
Second, each clause must be considered according to its actual wording, and it must be seen to clearly extend to the exact contingency which has occurred if it is to protect the party relying on it. It is said that a party relying on the exemption
“unforeseen contingencies excepted” is required to show that these have made performance of the contract totally impossible, not merely impossible in the way originally intended by him, e.g. by the intended source of supply proving impracticable, if it is possible to obtain the goods elsewhere: see Wills (George) & Sons Ltd. v. Cunningham (R.S.) Son & Co. Ltd. (1924) 2 K.B. 220.

Third, is the rule that the party seeking to deny the applicability of an exemption clause will often be assisted by the rule that the words of a written document are to be construed more strongly against the grantor or maker thereof if there is ambiguity.

The maxim is: verba cartarum fortius accipiuntur contra proferentem (meaning literally, the words of charters are to be received more strongly against the grantor). In John Lee & Sons (Grantham) Ltd. v. Railway Executive (1949) 2 All ER 581, a railway warehouse was leased by the defendants to the plaintiffs. A clause in the lease exempted the defendants from liability for “loss or damage (whether by act of neglect of the company or their servants or agents or not) which but for the tenancy hereby created would not have arisen.” Owing to a fire caused by the negligence of the defendants in allowing a spark to escape from a railway engine, goods in the warehouse were damaged. It was held that the words “which but for the tenancy hereby created would not have arisen” confined the exemption to liabilities created by the relationship of landlord and tenant.

Although the clause was capable of a wider construction, it was in a sense ambiguous and would be construed more strongly against the grantor. Evershed M. R. said at page 583 inter alia:

“We are presented with two alternative readings of this document and the reading which one should adopt is to be determined, among other things, by a consideration of the fact that the defendants put forward the document. They have put forward a clause which is by no means free from obscurity and have contend that … it has a remarkably, if not an extravagantly, wide scope, and I think that the rule contra proferentem should be applied …”

Fourth, in order to exclude liability for the negligence effectively, appropriate and comprehensive words should be used. If the defendant merely says “any loss” is excluded, it is the view that he is directing attention to the kinds of losses, and not to their origin; and so liability for negligence will not necessarily be excluded. But if he says any loss “however arising” or from “any cause whatever”, these words will cover losses by negligence: see Joseph Travers & Sons Ltd. v. Cooper (1915) 1 K.B. 73 at 101; Gibaud v. G.E. Railway Company (1921) 2 K.B. 426 at 437; Rutter v. Palmer (1992) 2 K.B. 87 at 94.

In the exemption clause or exchange risk indemnity under consideration, I have already shown that there is ambiguity even as to the source of the delays sought to be excluded from liability and/or by whom cause. But over and above that, what
happened in the present case is not just delays but an alleged total failure to act to ensure remittance of the foreign exchange. I hold that the clause not only has limited scope but also is ambiguous and therefore the rule contra proferentem should be applied. When so applied, the said exchange risk indemnity does not avail the appellant.

To determine issues 1, 2, 3 and 4, I shall refer to and reproduce a relevant paragraph of the further amended statement of claim and the appellant’s reaction to it in its amended statement of defence. Before doing that let me say that the learned trial Judge fund (1) that the appellant lost the documents submitted to it by the respondent for the purpose of remitting the fund to the suppliers; (2) that it was a mere ruse for it to say that because the respondent failed to furnish its tax clearance certificate in time it could not secure the foreign exchange funds for the transaction under the pre-SFEM rate; (3) that since the appellant also alleged that the Central Bank had no foreign exchange to meet the respondent’s needs at the material time, the onus was on it to call evidence of the Central Bank had no foreign exchange to meet the respondent’s needs at the material time, the onus
was on it to call evidence of the Central Bank and having failed to do so the presumption under section 1 48(d) – now 149(d) – of the Evidence Act must be held against the appellant. I think the learned trial Judge was reasonably justified in those findings from the facts as presented.

In para. 21 of the further amended statement of claim, it was averred:

“21.   As a result of non-remittance of the said sum by the defendant owing to its negligence in the loss of the remittance documents to the beneficiary – Servisol Ltd., England, the plaintiff lost all subsequent businesses with its said beneficiary and with it all profits it would have made therefrom. Servisol Ltd., England had withdrawn the said sum of £23,810.00 from plaintiff’s standing deposit with it. The plaintiff has between 1981 and 1989 demanded payment of the said sum of £23,810.00 from the defendant who has refused, failed and or neglected to do so for one excuse or the other. However, by defendant’s letter Ref. No. 101/BILLS/GNO/BNO of 2nd August 1990, defendant agreed to refund to the plaintiff the local currency equivalent of the sum of £23,760.00. The said letter is hereby pleaded and shall be relied upon at the trial.”

In para. 11 of the amended statement of defence, the appellant averred:

“11.   The defendant categorically denies paragraph 21 of the amended statement of claim and shall require strict proof thereof. The non-remittance of the said sum was due to the fault of the plaintiff for failing to lodge with the requisite tax clearance certificate. Any loss of subsequent anticipated business with its suppliers was not only imaginary but also speculative as well and not traceable to the transaction between the plaintiff and the defendant.”

In spite of the two averments quoted above, the respondent gave the following evidence in cross-examination inter alia:

“The deposit I made on 27/7/81 was in naira. I do not know what was the naira equivalent of {1 at the time I made the payment … Before these proceedings I had already made by remittance to the overseas customer through the defendant. The
18,000 pieces of fire extinguishers were shipped from England to Nigeria. I cannot remember the date of the shipment … … It was in July, 1981 that the goods were cleared from customs … The defendant told me that they found it difficult to obtain
foreign exchange and that was the reason they did not process the application. I told them it was a ruse because after the submission of the application, I obtained 17 other bills which the defendant paid on my behalf and tax clearance certificate on each bill was submitted to defendant… The 17 bills were paid between August, 1981 and September, 1982. The one now in question was in July, 1981. I do not know the profit I made from the 18,000 pieces of fire extinguishers that gave rise to this
to suit.”

From the above-quoted piece of evidence on behalf of the respondent, it seems clear that the respondent indeed got the said 18,000 fire extinguishers ordered through the appellant shipped to it from the suppliers in England just at about the time the order was made in July, 1981. How this happened is not clear, or, should I say is baffling. It sold the goods and made profit although it said it did not know the amount of profit it made. Again, between August, 1981 and September, 1982, the
appellant was able to help the respondent settle its 17 bills for goods ordered. So the appellant lost no business in effect in regard to the 18,000 fire extinguishers and subsequently in regard to 17 other orders. It is therefore inexplicable why the
respondent claimed for general damages of N689, 577.11 from the appellant for alleged “breach of contract and or negligence in failing to remit the said sum” of money it deposited with the appellant for the said 18,000 fire extinguishers. The learned trial Judge without any basis in law awarded N200, 000.00 as general damages for negligence.

With due respect, the learned trial Judge was under grave misconception. The nature of the action is not founded on the tort of negligence, then the particulars of negligence would need to be set out. It would then have to be proved that (a) the appellant owed the respondent a duty of care, (b) there was a breach of that duty and (c) the said breach caused damage to the respondent: Agbonmagbe v. CFAO (1966) 1 All NLR 140 at 145, In the present case even if the nature of the action was founded on the tort of negligence, and that the appellant owed the respondent a duty of care to ensure that the documents submitted for the purpose of remitting funds to suppliers of the goods in question in England were not misplaced but processed for that purpose and that there was a breach of that duty, no damage of any meaning that can be compensated in money was suffered by the respondent from what is known from the evidence. In essence it would be damnum abseque injuria (i.e. a loss which does not give rise to an action for damages against the person causing it).

However, the correct position is that the respondent is complaining of the appellant’s failure to perform its obligation to remit the money deposited by the respondent with the appellant to Service Ltd in England for 18,000 fire extinguishers ordered. The appellant failed to get foreign exchange under the pre-SFEM rate (for at all), according to the complaint, because it negligently
misplaced the respondent’s necessary documents meant for that purpose. That would be breach of contract due to negligence.

This was the situation epitomized in Hadley v. Baxendale (1854) 9 Exch. 341. In that case, the plaintiffs’ mill was brought to a standstill by the breakage of their only crankshaft. The defendant who were carriers failed to deliver the broken shaft to the manufacturer at the time they had promised to do, and the plaintiff’s sued to recover the profits they would have made had the mill been started again without the delay.

Although the action failed on the ground that the facts known to the defendants were insufficient to “show reasonably that the profits of the mill must be stopped by an unreasonable delay in the delivery of the broken shaft by the carriers to the third person”. Alderson B., who delivered the judgment of the court said at page 354:

“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either as arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it”.

The principle of Hadley v. Baxendale has been approved by the Supreme Court in several cases including Shell B. P. Petroleum Dev. Co. Ltd. v. Transco (Nig.) Ltd. (1974) 11 S.C. 33 at 83-89; Armel’s Transport Ltd. v. Transco (Nig.) LTd.
(1974) 11 S.C. 237; Alraine (Nig.) Ltd. v. Eshiett (1977) 1 S.C. 89. A plaintiff who alleges damages arising from a breach of contract, must plead and particularise the damages. They are in the nature of special damages not general damages. In the
case of B.E.O.O. Industries (Nigeria) Ltd. v. Maduokoh (1975) 12 S.C. 91 at 108, the Supreme Court approved Lord Donovan’s observation in Perestrello E Companhia Limitada v. United Paint Co. Ltd. (1969) 1 WLR 570 at 579 which reads:
“… if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court… ”

It is a requirement of pleadings that special damages must be specifically pleaded. If not admitted by the defendant they must be strictly and distinctly proved in the sense of evidence which lends itself easily to quantification or assessment: see West African Shipping Agency (Nigeria) Ltd. v. Kalla (1978) 3 S. C. 21. As to the need and obligation to particularise items of special damages, Lord Donovan went further at pages 579-580 of Perestrello’s case (supra) to say:

“The same principle gives rise to a plaintiff’s undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact
calculation. Such damage is commonly referred to as special damage … that is ‘special’ in the sense that fairness to the defendant requires that it be pleaded.
This obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible.

The matter is clearly stated in Mayne and McGregor on Damages (12th Edn. 1961) in para. 970, where the [learned] editors say:

‘Special damage consists in all items of loss which must be specified by (the plaintiff) before they may be proved and recovery granted. The basic test of whether damage is general or special is whether particularity is necessary or useful to warn the defendant of the type of claim and evidence, or of the specific amount of claim, which he will be confronted with at the trial.”

I believe I have sufficiently shown that in the present case, the respondent suffered no damage, either in the form of loss of business or loss of profit. His evidence discloses that he received the 180,000 fire extinguishers (the very month they were
ordered), he sold them and made profit. He also thereafter through the appellant’s banking facilities transacted 17 other importations successfully.

There is therefore no basis whatever for claiming against the appellant general damages of N689, 577.11 “for breach of contract and or negligence in failing to remit the said sum to plaintiff’s beneficiary, Servisol Ltd., England”; nor was the
learned trial Judge justified in awarding him N200, 000.00 out of that amount claimed. I also hold that there is no support for the so-called interest awarded by the learned trial Judge at the rate of N10 per centum per annum. It was not agreed by the parties nor is there evidence that that was the going interest rate. The learned trial Judge made an arbitrary award of interest which cannot be allowed to stand. I accordingly allow this appeal and set aside the judgement in regard to the award of N200, 000.00 general damages and interest at “N10 per centum per annum” or any such other interest together with costs awarded since the respondent turned down a refund made by the appellant of the deposit paid for the importation but rather went to court on a frivolous claim. I therefore dismiss the claim for damages and interest. I award costs of N3, 000.00 in favour of the
appellant against the respondent.

NSOFOR, J.C.A. (DISSENTING): This is an appeal from the decision of the Imo State High Court (S.W. Chianakwalam, J.) holden in Aba on the 11th of June, 1991 in suit No. A/161/90.

The claims of the respondents, qua plaintiffs at the trial are, see paragraph 22 of the further amended statement of claim copied in pages 6 to 13 of the record of proceedings: –

“1.     The sum of N310, 422.89 being the equivalent of £23,810.00 at the current rate of exchange at N13, 0375 per £1.00 (sterling).

N689, 577.11 being general damages for breach of contract and/or negligence in failing to remit the said sum to (the plaintiff’s beneficiary, Servisol Ltd. England.
25% of interest per annum on £23,810 or its equivalent from date of deposit 22/7/81 until date of judgement.”

Pleadings in the suite were settled, eventually at the “further amended statement of claim” (hereinafter to be referred to as the ‘claim’ for short) and the “amended statement of defence” (hereinafter to be referred to, simply, as the “defence” for short) copied in pages 14 to 19 of the record of proceedings.

The case came before S.W. Chianakwalam, J. on the 29/4/91. A full scale trial started then. The plaintiffs testified viva voce through their managing director (Mr. Nkemakolam Uduma). Thereafter, the plaintiffs closed their case. The defendants led evidence and called the evidence of a witness. At the conclusion of all the available evidence both oral and documentary and, after receiving the final oral addresses by the counsel, the learned trial Judge reserved his judgement till the 11/6/91.

In a reserved and well considered judgement, the learned trial Judge found for the plaintiffs in the terms of their claim. He awarded to the plaintiffs N200, 000.00 (Two hundred thousand naira) as general damages for negligence; interest on the
judgement-debt of N230, 489.75 at the rate of N10 (Ten Naira) per centum per annum from the 12th day of June, 1991 until the judgement-debt is liquidated. There were costs awarded against the defendants in favour of the plaintiffs fixed at N1, 000.00.

Dissatisfied and aggrieved with the decision, the defendants, naturally and logically, have appealed from the decision to this court originally on five grounds of appeal.

The “notice of appeal” together with the “grounds of appeal”, (copied in pages 66 to 69 of the record of proceedings) was lodged on 12/6/91.

Subsequently, the defendants sought for and were granted leave to amend and to file amended grounds of appeal in terms of their “Exhibit A” deemed properly filed and served.

Altogether, nine (9) grounds of appeal as amended were raised. I decline to reproduce the amended grounds of appeal together with their respective “particulars” to avoid prolixity.

Now, it is desirable, indeed necessary to give the background facts of the case giving rise to the appeal in order to facilitate a comprehension and an appreciation of what issue was involved and canvassed at the trial and being pursued herein on appeal.

Afterwards, an appeal is continuation of the original suit, not an inception of a new suit.

The pleading on both sides are rather lengthy, prolix. Therefore rather than extract the facts from the pleadings themselves, I shall summarise them albeit briefly.

There are, however, on the pleadings some areas of common ground between the parties. The areas of non issue, i.e. admitted facts, include:

The plaintiff-importers based in Aba-were or are customers of the Defendants- banker or bank – having a branch also in Aba.

Some item in 1981 precisely on the 27-7-81, the plaintiffs paid to the defendants on bills MBC/101/89/284B the sum of N30, 489.75 being an equivalent of 23,810.00 (British Pound Sterling) for remittance to the plaintiffs’ overseas customers –

(Servisol Ltd, England, hereinafter to be refereed to, simply, as the Company, for short) for the importation of some Rapid Fire Extinguisher Assembly 640 GWS Ex ” River Ikpan” from England into Nigeria.

The plaintiffs submitted to the defendants the relevant shipment documents were for the purposes of the remittance. Those documents were

(i)      exchange control copy bill of Entry No.CO/28757/200534 of 6/7/81.
(ii)     tax clearance certificate for 1981
(iii)    original and Photostat from M C.B.N. 148020 insurance certificate.

It is not disputed that about two years later (i.e. in 1993) the plaintiffs re-submitted, this time in photostat copies those shipments documents originally deposited with the defendants in 1981 on the defendants’ demand.

In April, 24th 1986 the defendant demanded of the plaintiffs to furnish them with a tax clearance certificate fro the current year to enable them (defendants) obtain the Central Bank of Nigeria Ltd. (C.B.N.) approval for the remittance to Servisol Ltd.
The plaintiffs’ furnished to the defendants the current tax certificate as demanded by the defendants. This was in 1989. Vide the plaintiffs’ letter Ref. No. AMC/CEK/89/82 of 13/11/89.
The remittance was not made to Servisol Ltd. England.

It was also admitted by the parties that the defendants by a letter dated 17/11/89 informed the plaintiffs that a remittance to Servisol Ltd. England was no longer possible because the C.B.N. stopped “verification/reconciliation of pre-SFEM trade
debts”. The defendants requested of the plaintiffs to liaise with their drawers to issue to the defendants with instructions for the disposal of the plaintiffs’ deposit with the defendants for remittance to Servisol Ltd., England.
The above areas of non issue having been demarcated, what, then are or is the areas or an area of disagreement – the controversy between the parties? The plaintiffs’ case was this.

A letter by one Mr. P.H.J. Spiers of the defendants to Mr. Morgan of Servisol Ltd. England, which letter was endorsed to the plaintiffs had complained that the plaintiffs’ shipments documents deposited with the defendants were lost “in transitu” between the defendants’ Aba office and the defendants’ head office in Lagos. The letter was written on the 8/7/83. Without these documents the C.B.N. would not make any remittance. Consequently the plaintiffs wrote to the defendants threatening a court action and claiming one million naira in negligence for the loss of those shipment documents.

The defendants’ Deputy General Manager approached the plaintiffs. He pleaded with the plaintiffs to stay any court action to enable the defendants find a solution out of court.

It was part of the plaintiffs’ case as pleaded that the defendants’ demand for the current tax clearance certificate was a mere subterfuge to make the plaintiffs believe, though falsely, that the defendants were doing something towards remitting the money to Servisol Ltd, England when in fact the defendants knew full well that the C.B.N. could no longer approve applications for cover for pre-SFEM importation.

Because of the defendants’ delay to effect the remittance to Servisol Ltd, England, the Company, as the plaintiffs pleaded, (see paragraph 14 of the claim) “chopped off plaintiffs’ deposit of £78000 part of which was the £23,810 as a result of the delay on the part of the defendant to remit the said sum … .” The deduction made, was, according to the plaintiffs, reflected in the statement of account which the company sent to the plaintiffs on 23-1-84.

Paragraph 21 of the claim pleaded: –

“21. As a result of non remittance of the said sum by the defendant owing to its negligence in the loss of the remittance documents to the beneficiary Servisol Ltd, England the plaintiff lost all subsequent businesses with its said beneficiary and
with it all profits it would have made therefrom… ”

Hence the action!

The defendants on their part have denied that they lost the shipment documents which the plaintiffs furnished them with (defendants) in 1981. According to the defendants, after the plaintiffs had deposited the money for remittance to the company
– Servisol Ltd, England – their (defendants’) Aba branch remitted the collection to their head office in Lagos on the 2/9/81 per their N.T. Schedule 101/89/72 for £23,810.00 on their voucher No. 868372.

In 1983 (i.e. about two years after the deposit by the plaintiffs) the Aba branch of the defendants on an injury about the fate of the bill from their Lagos head office, the Lagos head office “in error claimed non receipt of the said application.”
Consequently the defendants made the demand for a re-submission of the shipment documents from the plaintiffs. The Lagos head office rejected the earlier application and instead insisted on a “Current tax clearance certificate”.

It was, however, part of the case of the defendants that there was a scarcity of foreign exchange in the Central Bank of Nigeria Ltd. The C.B.N. has stopped the reconciliation of pre-SFEM trade debts in 1989. It was the failure of the plaintiffs to furnish the defendants with the current tax clearance certificate in time, coupled with the scarcity of foreign exchange in the Central Bank of Nigeria Ltd which, according to the defendants, was responsible for the non remittance to Servisol Ltd, England. The current tax clearance certificate was however a pre-condition to a consideration of an application for foreign exchange by the C.B.N. But even when an approval is obtained as exemplified in the C.B.N.’s approval slip No. 82688 of 8/12/83 after the plaintiffs had re-submitted the 1981 shipment documents in photostat copies, that only meant that the application or the applicant was on the queue to await its own turn for the release of any foreign exchange by the C.B.N
Paragraph 12 of the amended statement of defence pleaded inter alias: –

“12.   The defendant denies that there was any negligence traceable to it through the transaction. The defendant avers that assuming there was any such trace of negligence which is vehemently denied, the plaintiff is wholly estopped from any claim against the defendant by virtue of the foreign exchange risk indemnity dated 27th day of July, 1981 issued to the defendant by the plaintiff whereby the plaintiff, inter alia, contracted and acknowledged that neither the defendant nor its agents shall be held responsible for any delays in obtaining such foreign exchange currency from the Central Bank of Nigeria or any delays in remitting the same.” (the italics is supplied for what I may be disposed to say ut infra.)

What issue, really, came on for trial? In my view of the pleadings, assuming I comprehended them full well, the issue was simple, straightforward and singular. In my view, it was this. Before formulating it, as in my respectful opinion it is, from the state of the pleadings, I shall advise myself and, remind myself of what principle to guide me in the formulation. I did, however above, italicise the word, “transaction” in paragraph 12 of the defence, advisedly and purposefully.

I decline to formulate the issue that came on for trial in the terms either of contract or its breach or, in the terms of the negligence, forms of action the pleadings severally employed. But why not? Because so to do immediately puts me in mind of
Maitland: “Forms of action are buried but still they rule us from the grave”. But why the government of the living by the dead.

Speaking for myself, I do not like it. Why not the dead ever remain in the silent cold comfort of their grave! And we have ever since moved to and accepted as settled the principle: “ubi jus ibi remedium”. Therefore, provided there be a “dammun cum injuria”, a legal wrong, occasioned by or suffered in the “1981 transaction” of the parties herein, then “ex necessitate” there ought to flow therefrom a “remedium” i.e. compensation even though it be nominal. Why? Because there was an injuria or legal wrong.

The issue then becomes this. Armed with and guided by the above discussed principle: (1) Who – the plaintiffs herein the respondents, or the appellants, qua defendants at the trial, in the “1981 transaction” for the importation of the fire extinguisher by Servisol Ltd, England, into Nigeria was responsible for the non remittance of the cost price of £23,801 (British sterling) to the sellers (i.e. Servisol Ltd)? And depending on the resolution of (1) above, then a subsidiary issue becomes this. (ii) Of what legal consequence, if any, was or is the exchange risk indemnity?

The parties had filed their respective briefs of arguments in compliance with the Court of Appeal Rules. See Order 6 r.2. The appellants distilled five (5) issues for determination from their nine grounds of appeal as amended. The respondents at page 4 of the respondents” brief had adopted the issues as formulated in the appellants”brief at page 5, “paragraph D””thereof. I shall set down those issues. They read: –

“1.     Whether the judgement of the court below was against the weight of evidence.

2. Whether (the plaintiff had any cause of action against the defendant and was there sufficient evidence to prove negligence against the defendant.
3. Whether there was proper basis for the award of N200, 000.00 (Two hundred thousand naira) as general damages to the plaintiff.

Whether the learned trial Judge misdirected himself as to the proper construction and import of section 148(d) of the Evidence Act thereby coming to a wrong conclusion.

Whether the learned trial Judge placed a proper construction on defendant’s Exhibit 6, i.e. exchange risk indemnify.”

Counsel’s contention: –
Arguing issue No. (1), Mr. Nwadi of counsel for the appellants had devoted pages 7 to 10 of the appellants’ brief to a replication of the evidence by the plaintiffs through their representative (Mr. Nkemakolam Uduma; Managing Director),
evidence which in the opinion of the counsel was “sketchy and scanty” and the testimony of Mr. Austin Eniynnaya, an employee of the appellants and also Mr. Nathaniel Umunna Awanaka (D.W.1), (the bills manager of the appellants.)
In the counsel’s opinion their testimony was “quite formidable and to the point and their testimony were (sic) unchallenged and uncontroverted.”

Mr. Nwadi had catalogue an avalanche of decided cases including Mogaji v. Odofin (1978) 4 S.C. 91 and Lt. Col Mrs. R. A. Finnih v. J. O. Imade (1992) 1 NWLR (Pt. 219) 511; (1992) 2 SCNJ 87 at 97 for what an “omnibus ground of appeal”, from
which the issue under my consideration was distilled, connotes and denotes – decisions rightly made in my respectful opinion for the principles immanent in them –

It was contended by counsel in the appellants’ brief in page 9 thereof that, (and I beg leave to borrow the language of the brief),

“A careful perusal of the testimony of the defendant’s witnesses will show that they were not even challenged let alone controverted. The alleged loss of documents between 1981 and 1983 had as a matter of fact been overtaken by events.”

As counsel submitted in the appellants’ brief the loss alleged of the shipment documents of the respondents was not detrimental to the respondents’ application because both parties were prepared to carry on and did carry on with their
transaction. It was further submitted that the respondents’ evidence of the loss alleged of those shipment documents apart, the respondents proffered no cogent evidence in support or proof of their claim.

Concluding and relying on the cases including J.J.Gukas v. Jos International Breweries Ltd. (1991) 6 NWLR (Pt. 199) 614, Mr. Nwadi submitted that had the learned trial Judge put the totality of the evidence as led on that imaginary scale which is the scale of justice he, no doubt, would have preferred that unchallenged and undiscredited version of the evidence by the appellants to the version of the evidence by the respondents and, on that account, would have dismissed the respondents’ action.

The gist of the contention by the counsel for the respondents in the respondents’ brief was this. The appellants had no legal defence to the action by the respondents. Counsel referred to the letter dated the 8th of July, 1983 written by the appellant’s Mr. P.H.J. Spiers to Mr. B.W. Morgan of Servisol Ltd, England, the respondent’s customers (Exhibit 3). It was further contended that but for the loss by the appellants of the respondents’ shipment documents the receipt of which the appellants did acknowledge in or by the letter dated 3/8/81 (Exhibit 2) (borrowing the language of the respondents, brief at p.6) “everything would have gone smoothly”. The appellant, it was submitted, admitted having forwarded to Lagos the duplicated shipment documents of the respondents, re-submitted to the appellants on their demand, after two years, that it so say, on the 31/3/83. Counsel submitted that no action was, obviously, taken by the appellants on the transaction before that date.

Counsel, at pages 6 and 7 of the respondents’ brief drew attention to the testimony respectively by the D.W 1 and the D.W 2.

It was contended that the versions of the evidence by these witnesses respectively were self conflicting in that (1) whereas the D.W 1 testified that as at the 8/12/98 and approval by the central Bank of Nigeria Ltd. (C.B.N) (vide Exhibit 1 tendered by the appellants) to remit the money to Servisol Ltd. had been obtained, the version of the evidence by the D.W.2 was that there was a scarcity of foreign exchange in C.B.N between 1981 and 1988.

No other explanation was offered by the appellants for not remitting to Servisol Ltd. England, the sum of 23,810.00 after the loss of the shipment documents inclusive of the tax clearance certificate for 1981. The respondents were not obliged to
furnish the appellants with another tax clearance certificate for 1981 after one had originally been received and acknowledged by the appellants.

Finally, it was contended that there was no legal proof offered by the appellants that the C.B.N. was lacking in foreign exchange or that there was a scarcity of foreign exchange in the C.B.N

Concluding counsel in the respondents’ brief urged us to resolve the issue against the appellants.

Treatment: –

I shall pause for a while for a comment or two for the purpose of clarity and elucidation to put the point aside. It arises from the submission by counsel in the appellants’ brie’. It was contended that some evidence by the appellants at the trial stood “unchallenged” and “undiscredited”. In my view, with respect to counsel, there appears to be a fallacy running through the argument at the bar. A piece of evidence by a party does not become “unchallenged” or “undiscredited” merely because the adversary did not cross-examine the witness on that evidence. No. If on a given issue, one party offense a version of evidence in support of an assertion and the opposite party, on the same point or subject matter, offers versions of evidence opposite to that version, then, immediately in my respectful opinion, there occurs a challenged. Apiece of evidence given by a witness on a given point or subject matter of an issue may be said to stand “unchallenged”, if there be no other evidence by the adversary on the same issue or subject matter. Once there are two conflicting versions of evidence on a given point there is a dispute on that point. Once version of the evidence cannot be said to stand “unchallenged”. No. In the case-giving rise to the appeal, the version of the evidence by the respondents in support of their action is different from or conflictual with the version of the
evidence by the appellants in defence of the action. It is, in such a factual situation, let with the jury, the judges of facts, qua matters of fact, to determine which version of the evidence it prefers. And let me say the very obvious, before I have done with the point being made that trial judges in Nigeria sit in a dual capacity as judges of law in matters of law and jury in matters of fact.

Now, a good starting point for me in considering the submissions by counsel on the argument on the issue is, firstly to remind myself of the principle to guide me in reaching my conclusion.

A ground that a judgment is against the weight of evidence, which Issue No. 1 deals with, and is concerned with, is no more than an attack on findings or a finding of fact by the court of trial or a tribunal. See Etowa v. Fidelis Ikor Adu (1981) 11 – 12 S.C. 25 per Nnamani, J.S.C. (“beatae memoriae”; of blessed memory) at pages 38/39.

But see also Watt (or Thomas v. Thomas) (1947) 1 All E.R. 582. As the Supreme Court stated the principle in Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731 at page 742:

“It is true that an omnibus ground of appeal implies that the judgment of the trial court cannot be supported by the weight of evidence adduced by the successful party, which the trial judge either wrongly accepted or that the inference draw or
conclusion reached by the trial judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if accepted would support the findings of the trial judge… In deciding upon these issues it may be relevant to
consider whether the trial judge was rightly in giving credibility to the testimonies of the witnesses called by the successful party. If the credibility was wrongly given, then, that would of course affect the cogency given to the testimonies.”

Armed with the above and guided thereby, I approached the evidence as led; and thereafter the learned trial Judge’s handling of the evidence place before him. Afterwards, a case is, ultimately, decided based or the totality of the evidence.
I had above set out the areas of agreement or the admitted facts numbered serially. I shall resist reproducing the evidence, “viva voce” by the parties except where and when in my view, it is correspondences between the parties. Therefore I incline to refer to and carry the relevant letters or correspondence to make my comments intelligible.

After the respondents had furnished the appellants with the relevant shipment documents inclusive of the tax clearance certificate for 1981 in order to effect the remittance of the 23,810.00 to Servisol Ltd. l, as the respondents testified at page 2 lines 11 to 19 of the record of proceedings:

“My customers worried me that they had not received the money. I sent several letters to the defendant reminding them to do their work. I received a letter from the head office of the defendant in Lagos (Exhibit 3)”.

Now, what does Exhibit 3 from the appellants’ head office in Lagos say? It (Exhibits 3) reads in parts as follows: –

“8th July, 1983

“Dear Mr. Morgan,

Servisol Limited / Associated Motors Co. (Nig.) Ltd. Bill Ref MBC 101/98/284B – 23,810.00 SS River Ikpan ex Liverpool for Port Harcourt 29th May, 1981
Para 1: I do apologies for not having provided a situation report at an earlier date in connected with the special application, to the Central Bank of Nigeria which was brought about by the loss, in transit, of documents between Lagos and Aba… .
Para 3: This has, unfortunately, taking a considerable amount of time but we have obtained these confirmations and the application provisionally accept for allocation by the Central bank. This provisional status holds good until the executive Director in charge of the C.I.S.S. office of the Central Bank has signed the approval slip and we trust that this will be forthcoming in the very near future… Mr. Uduma has met with me since his return from the U.K. and has been acquainted with the position. He is, quite naturally, very concerned and I have provided him with a copy of this letter with the hope that he will be re-assured that we are making progress, albeit very slowly.

(sgd) x x x
P.H.J. Spiers
Controller
International Division
cc: Mr. Nkemakolam”

In an answer to a question in cross-examination, Mr. Nkemakolam Uduma at page 25 lines 7 to 13 of the record of proceedings stated: –

“Tax clearance certificate is essential for the processing of the application. We gave them tax clearance in 1981. They lost that. We assembled all the documents and sent them and another set of the documents in 1983 wit the tax clearance
certificate. The continued request by defendant for current tax clearance certificate after we lodged one with the application was unusual.”

Pressed further, still under cross-examination, the witness had this to say in lines 20 to 23 ibidem –

“I told them it was a ruse because after the submission of the application, I obtained other bills which the defendant paid on my behalf and tax clearance certificate on each bill was submitted to the defendant. Once I have the 17 bills here in court which the defendant processed for me after the bill the subject-matter of this action.”

Part of the testimony by the witness at page 26 of the record of proceedings, still under cross-examination, was: –

“It is not correct that the defendant failed to process the application because I failed to submit my current tax clearance. I submitted it in the first instance with the application.”

Testifying in-chief at page 23 lines 26 of the record of proceedings Austin Enyinnaya (D.W. 1) said: –

“The tax clearance certificate we had was for 1981. As it was necessary to have current tax clearance certificate to support the release of the foreign exchange we invited plaintiff to submit the current tax clearance certificate.”

Questioned by counsel for the respondents the D.W.1 replied at page 29 lines 29 to 31 of the record, and at P.31

“We did our job well. The bill amount on plaintiff’s Exhibit 1 is £23,810.00. The defendant made the entry. It is the amount (£23,810) which we were supposed to sent to England.”

The evidence by the appellants’ Bill Manager – Mr. Nathaniel Umunna Awanka at page 31 is relevant. Part of his testimony reads: –

“In 1981 the plaintiff had transaction with the defendant. The plaintiff deposited (sic) money with the defendant for remittance to its suppliers overseas. Between 1981 and 1983 there was scarcity of foreign exchange at the Central Bank. As a result of that the central Bank could not release all the monies deposited with the defendant by its customers for remittance to their overseas suppliers. Between 1984 and 1988 there was still scarcity of foreign exchange at the central Bank. The defendant did not send the money due to non-availability of foreign exchange at the Central bank.

Answering a question in cross-examination the witness testified further at page 32 lines 18 to 23 of the record of proceedings.

“In 1981 when the plaintiff applied for foreign exchange, it supplied the bank with its tax clearance certificate for that year when the application was made certificate for that year. It defendant to re-submitted his tax clearance certificate for that year.

It was in respect of the same transaction.”

What was the learned trial Judge’s handling of the evidence as led? Before I embark on the investigation, let me remind myself of the principle to guide me in reaching a conclusion.

Now, the evaluation of evidence, credibility of witnesses and the ascription of probative value to any evidence all – these are within the exclusive province of the court that sees, hears and believes. Frank Ebba v. Chief Warri Ogodo (1984) 1 SCNLR 372 at 378; (1984) 4 S.C. 84 at Pp. 98 and 99. Therefore, if there be any evidence to support a particular conclusion of the court of trial, and appellant court, which this courts is, which would have come to a different conclusion on the same evidence should restrain itself and respect the conclusion of the court that saw and heard the witnesses. See Odofin v. Ayoola (1984) 11 S.C. 72.

Put in another form, to succeed in an appeal against the findings of facts, it must be shown that in the performance of its primary duties of appraisal of oral evidence and ascription of probative values to such evidence that the court of first instance
made an imperfect use or improper use of the opportunity of hearing and seeing the witnesses or has drawn wrong conclusion from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support. See Christopher Okoro v. Eunice Uzoka (1978) 4 S.C. 77 per Obaseki, J.S.C. at page 86.

The learned trial Judge carefully and elaborately viewed the evidence as led. He assessed it. He thereafter came to the conclusion, at page 48 of the record, as he expressed himself, inter alia: –

“On 3rd August, 1981, the plaintiff perfected the condition of forwarding all relevant shipping documents including current tax clearance certificate necessary for foreign exchange. I am satisfied by the evidence of the plaintiff to the effect that the
defendant negligently lost the documentation in transit between Aba and Lagos… The defendant admitted it was on 3/3/83 that duplicate documentation of the application was forwarded to Lagos.

Continuing in lines 20 to 23 of page 48 of the record of proceedings the learned trial Judge wrote as follows: –

“I agree with the plaintiff that the case of its non-furnishing the defendant with the clearance certificate was a mere ruse to pass the buck and cover up defendant’s non-pheasant, call it negligence in the matter.”

Continuing in lines 30 to 35 ibidem he expressed himself in the following terms: –

“If 1983 current tax clearance certificate was essential, the defendant should not in 1983 have demanded and accepted from plaintiff copies of the documents lodged by plaintiff in 1981 for the remittance.”

I have read the record of appeal carefully and I thin, with some profit. The inference or deduction above made by the trial Judge, in my respectful opinion, is reasonably sound. It is flawless based on admitted facts. Besides, I confess I see no
justifiable excuse, indeed I very unsuccessful search for any reasons to interfere with his findings.

Mr. Nwadi of counsel for the appellants argued issue No.2 next. I had earlier on in the judgment reproduced the issue. I decline to reproduce it again for the purpose of what I incline to say hereunder discussing the submissions by counsel on the
issue.

On a perusal of the issue as formulated, it becomes clearly immediately that the
issue is composite. In my view there are two issues, by no means related, indeed disconnected from each other, rolled into one namely: Issue (1) of want of a cause of action and (II) of evidence in proof of negligence.

The second limb of the issue No. 2, it seems to me, is relevant and appertains to issue No. 1 above discussed. It has a bearing and is germane with issue No. 1.
Now, if the respondent has no cause of action, then he would not even be in court. No question of evidence in proof of anything would ever arise. Why? He is not in court because he has no cause of action. He cannot sue. And the court should
not hear him at all in proof of negligence. There appears therefore to be a mix up; some confusion somewhere.

Secondly, in view of what o may say later in the judgment, I shall permit myself to quote the submissions by the appellants’ counsel as stated in the appellants’ brief. That will facilitate a quick understanding and an appreciation of what comment I
may be making.

Contentions:

Mr. Nwadi conceded in page 10 of the appellants’ brief that here existed a banker/customer relationship between the appellants and the respondents; and that arising therefrom there was a duty of care owed by the appellants to the respondents. But he, however, contended, referred to and relying on the appellants’ Exhibit 5, 5(a) and 5(b) that the only evidence of any substance adduced by the respondents was in respect of Exhibit 3 (i.e. the letter dated 8/7/83 by Mr. P.H.J. Spiers to Mr. Morgan).

Based on Exhibit 3, Mr. Nwadi submitted at page 11 of the appellants’ brief that, (I borrow the language the language of the brief),

“It is therefore clear that the seemingly apparent delay was not that of the defendant’s (sic) but rather that of the plaintiff who confessed and admitted that he was finding it increasingly difficult obtaining current income tax clearance certificate.”

Notwithstanding the absence from the record of proceedings and the silence of the record, counsel, perhaps acting for either the Board of International Revenue or the Tax Assessment Authority to recover accrued tax arrears from the respondents,
contended further that “the plaintiff who failed to perform his civil duty (to pay tax) was simply, shifting the blame that lied (sic) squarely on his shoulders to the defendant” a submission I considered, with respect to counsel, an unnecessary redhearing.

At page 12 of the appellants’ brief, Mr. Nwadi submitted that the respondents had no cause of action against the appellants.

Any cause of action they had was caught by the Limitation Act (England) of 1623 applicable in Imo State. He cited and relied on Koney v. U.T.C. (1934) 2 WACA 188 and T.J. Solomon v. African Steamship Company Ltd. 9 NLR 99.
It was the further contention by counsel in the brief that the exchange risk indemnity (Exhibit 6) was binding on the respondents.

It was the counsel’s submission in page 13 of the appellants’ brief that (again I am borrowing the language of the brief).

“The plaintiff in its pleading failed to plead particulars of negligence and no evidence was given on negligence. Plaintiff failed to prove any items of general damages. General damages may be inferred in cases of defamation or of personal injury to the plaintiff… General damages will not be inferred but must be proved in case of loss of business following an injury.”

As counsel contended also in the appellants’ brief at page 10 (again in the language of the brief)

“In an action alleging negligence the plaintiff has the onus of establishing subject to the pleadings: –

The negligence or wrongful act of the defendant.

That he suffered damages as a result of the negligent act of the defendant.

The special and general damages as claimed by the plaintiff.”

Learned counsel for the respondents in the respondents’ brief has concentrated on
The question, appropriately in my view, of want of a cause of action. It was for the appellants at the final oral address stage in the court below. Counsel, therefore, urged us, on that account, to disregard and discount any submission by the appellants on the issue or plea.

But it was, however, perhaps ex abundanti cautel,” contended that the respondent’s action was not statute barred. It was submitted that he action was instituted by a write of summons on the 24/4/90. And between 1981 and 1989 the parties, as counsel submitted, were still exchanging correspondence. Counsel referred to Exhibits 1 to 8 tendered by both parties at the trial.

On the question of negligence or no negligence, counsel submitted at page 10 of the respondents’ brief that the loss of the original shipment documents by the appellants gave a good cause of action. It constituted a breach of the duty owed to the respondents by the appellants. There was a duty on the part of the appellants to be diligent in the performance of their contract with the respondents. Concluding, counsel urged us to resolve the issue in the favour of the respondents and against the appellants.

I, now, pause here to make the comments I promised I would, firstly.

Without intending any disrespect, indeed with respect to the counsel for the appellants, it is my humble opinion that the counsel had some confusion, assuming he were not confused in making the submissions on the issue in hand. He, surely, had wrong focus on what the contentions are directed to. How and why?

I, Could the learned counsel. Unless there be some confusion, be muddling up submissions and arguments in support of a limitation of action under the Limitation Act (England) 1623 with contentions in support of evidence, sufficient or insufficient, in proof of negligence? And it was contended that there were no particulars of negligence pleaded.

This distinction needs to be drawn. While an ouster clause, for example, is directed towards the court and seeks to deprive the court of its legal authority, jurisdiction, stricto sensu, to entertain any particular matter or suit, a limitation of action legislation is directed, not to the court itself, but to the litigant – the plaintiff himself. The legislation places a bar against him.

Notwithstanding that he may, full well, have a good cause of action against the defendant, the law say to him: “You cannot sue. Your time to sue the defendant is all over.” So, there ends the matter. The plaintiff is, therefore, out of court.
If the plaintiff cannot sue no matter what cause of action he has, a fortiori, no question of whether or not he pleaded particulars of negligence or gave sufficient or insufficient evidence in proof of negligence would ever arise. The plaintiff ought firstly, to be in court, sue, before he proffers evidence in proof of any claims or issues. Pure and simple. This is elementary.

What then is a cause of action? How is it ascertainable, i.e. what is the source of whether or not a plaintiff has a cause of action? How is it determined whether the action is statute barred? All these I shall discuss later in the judgment. And then the question next will be this: Was the respondents’ action statute barred? What was the learned trial Judge’s determination of the question?

Certainly, the plea of Limitation of action was raised by Mr. Nwadi at page 34 lines 13 to 20 of the record in the course of his final oral address. It was not raised in the appellants’ pleadings. In my view, the appellants had two options procedurally to
raise the plea. They may, after the service on them of the write of summons and the statement of claim, have raised it by an action (id est, a motion on notice, (a motion is an action: see Kiwi Polish Co. v. Kempthorne (1922) N?? LRP. 77). Or, they could raise it in their statement of defence. In either case, the point will be taken “in limine”. It successful, then the matter ends there and then. The appellants did not adopt either of the two methods. Could they now on an appeal raise the plea not having done so at the trial save at the address-stage?

On the assumption that they could, and it is better to err on the side of caution, I shall consider the submission by the counsel respectively on the point later.

The further confusion, counsel for the appellants appeared to be in, was this. He was confusing “damages” with “injuria” or legal wrong or damage, when he submitted as demonstrated at page 10 of the appellants’ brief reproduced above. The rather elementary principle is, speaking forensically, that in cases of defamation the law implies “damage” i.e. injuria in favour of the party allegedly defamed. “Damages” in the lawyers vocabulary connotes and denotes compensation i.e. naira and kobo. And needless to say that where special damage is suffered the law allows special damages. And the party who suffers “general
damage” may recover general damages only.

“General damages” as Mr. Nwadi submitted, wrongly in my view, is not “inferred”. They are at large. See Prehn v. Royal Bank of Liverpool (1870) L.R. 5 Exch. 92 per Martin, B at pages 99/100. Special damages must be proved strictly. See
Ratcliffe v. Evans (1892) 2 QB. 524 per Bowen, L.J.; Oshinjinrin v. Alhaji Elias (1970) 1 All NLR 153.

Now to limitation of actions: –

The general principle of law is that where the law provides for the bringing of an action within a prescribed period in respect of a cause of action, accruing to the plaintiff, proceedings shall not be brought after the period prescribed by the statute or the Decree. See Obiefuna v. Okoye (1961) All NLR 357. An action brought outside of the prescribed period offends against the section of the law and does not give rise to a cause of action.

How is then ascertainable whether or not an action is statute barred? Before I embark on the investigation, a pertinent question requiring to be asked firstly to be firstly answered is this. But what is a cause of action? When does a cause of action
accrue?

In Nosiru Bello v. Attorney General of Oyo State (1986) 5 NWLR (pt.45) 828 the Supreme Court, those voices o infallibility, defined a action as a bundle of facts which the law will recognise an giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. Thus the factual situation on which the plaintiff relies to support his claim must be recognised be law as giving rise to substantive right capable of being claimed or enforced against the defendant.
In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right.

In Akilu v. Fawehinmi (N0.2) (1989) 2NWLR (pt.102) 122, the Supreme Court citing Nosiru Bello v. General Oyo State (supra) defined a cause of action to mean:

“every fact which is material to be provided to entitle the plaintiff succeed or all those thing necessary to give a right to a relief in law or equity.”

But see also Okechukwu Adimora v. Ajufo (1988) 3 NWLR (pt.80) 1 at page 17. When these facts have occurred and provided there be in existence a competent plaintiff and a competent defendant, a cause of action is said to have accrued to the plaintiff.

Now, the question next arising become this. How, then, is it ascertainable whether or not the plaintiff’s action is statute barred? In my opinion, it is as easy as it is simply. A mere matter of simple arithmetical calculation! But how? Seek to know
when the cause of action accrued to the plaintiff. With the above at the background, then approach the statute or Decree in question to ascertain therefrom what period of time it prescribed by the Limitation of Action Act or legislation, the action is statute barred. Pure and simple.

Mr. Nwadi at page 34 of the record says that since the appellants admitted the loss of the respondent’ shipment documents bewteen1981 and 1983 the action by the respondents in 1990 was statute barred. He referred to section 3 of the English
Limitation Act, 1623, Mr. Chukuneye of counsel for the respondents in the course of his final oral address in reply at page 35 contended that the action was founded on negligence and not on the loss of shipment documents. In the respondents’ brief
counsel drew attention to Exhibit 7 tendered by the appellants.

It (Exhibit 7) was dated the 17th of November, 1989. It (Exhibit 7) read in parts –
“We refer to your letter dated 13th November 1989 and advised that the issue of effecting your transfer has been over taken by events as the Central Bank has stopped further verification/reconciliation of pre-sfem trade debts… ”

From the writ of summons and further amended statement of claim, was the respondents’ action founded, really, on the loss of the documents or on the breach of duty of care or want of diligence to remit the N23, 810.00 to Servisol Ltd. England?

How did the trial Judge resolve the matter, faced with the facts? The learned trial Judge had before him the writ of summons and the statement of claim as amended. Writing at page 51, he expressed himself, inter alia, thus: –

‘That the money lodged was the property of the overseas customers was one of the terms for which the application for foreign exchange was made. Failure to remit the foreign exchange in circumstances exposed in this case gave rise to a good cause of a cause of action for the plaintiff. The action is not statute barred. The suit was instituted on 24/4/90. Upon careful assessment of the defendant’s pleadings and evidence, it is clear that when the defendant wrote its letter dated 19th January, 1987 (defendant’s Exhibit No. 3) appealing to plaintiff to endeavour to provide the bank with the plaintiff’s tax clearance certificate to enable the defendant apply for foreign exchange with a view to remitting plaintiff’s bill, the defendant regarded the
transaction still potent and executory.”

Applying the principle above discussed to the factual situation of the parties, I have no hesitation in holding that I find myself in agreement with the learned trial Judge that the action was not statute barred. Issue No. (2) I readily resolve in the favour of the respondents and, eo ipso, against the appellants.

Submissions on the argument on issue No. 3 are directed to the damages awarded by the trial Judge against the appellants. As Mr. Nwadi contended in the appellants’ brief at pages 13 to 15 thereof the sum of N200, 000.00 general damages, it was
submitted, was “unwarranted, excessive, extravagant, unreasonable and unconscionable”. Counsel has employed all pungent epithets imaginable to qualify the damages awarded in order to contend that the trial Judge in his assessment of the damages proceeded on wrong principles of law. He cited and relied on a long chain of decided cases including Hadley v. Baxendale (1854) 9 Exch 314 (a locus classicus on the question); Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623, 628 and, Chief F. R. A. Williams v. Daily Times of Nigeria (1991) 1 NWLR (Pt. 124) 1, 30 to 31.

Counsel for the respondents in the respondents’ brief justified the award.
In the circumstances of the submissions by the counsel on this issue, two distinct questions arise.

1. What principles should be observed by an appellate court in deciding whether it is justified in disturbing the finding of the court of first instance as to quantum of damages more particularly when the finding is that of a jury, those twelve reasonable men and women?
2. What principle will govern the assessment of the quantum of damages by a tribunal of first instance itself?

Before I go any further in my discussion of the submissions, let it be said straightaway for the purpose of clarity to put the point aside that the principle upon which damages are to be assessed or are assessed does not depend upon the form of action at all. Every member of this court is therefore anxious to do all he can to ensure that damages are adequate for the injury suffered so far as they can be compensation for the injury and to help the parties and others to arrive at a fair and just figure.

Provided, therefore, there be established an injuria, legal wrong, there ought to be some compensation even if it be nominal damages. But lest I be misunderstood, the term “nominal damages” is a technical phrase which means that you have negative anything like real damage but that you are affirming by your nominal damages that there is an infraction of a legal right which gives it no right to any real damages at all, yet gives you a right to the verdict or judgement because your legal right has been infringed. So, the term nominal damages does not mean small damages.

The principle which applies under head “A” above is not in doubt. Whether the assessment be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure, if it had tried the case at first instance. Even if the tribunal of first instance be a judge sitting alone, then before an appellate court can properly intervene on interfere it must be satisfied that either the Judge in assessing the damages applied a wrong principle of law (as taking into account some irrelevant factor or leaving out of account some relevant one) or short of this, that the amount is either so inordinately low or inordinately high that it must be a whole erroneous estimate of the damage: (Flint v. Lovell (1935) 1 KB 354 approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) A.C. 601. The last named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they arrived and the figure at which they could have properly arrived must, to justify
correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone. The figure must be wholly “out of proportion” per Lord Wright. See Nance v. British Columbia Electric Railway Co. Ltd. (1951) A.C. 601.

But see also Union Bank of Nigeria Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558 per Wali, J.S.C. at page 586.

In the circumstances a party appealing against damages should specify with particularity the wrong principle of law alleged if he wished to argue (as Mr. Nwadi of counsel for the appellants herein does wish) that the judge acted on a wrong principle. It behoves me to remark that counsel in the appellants’ brief did not specify the wrong principle of law the court below relied on to make the award of the damages it did.

I shall further remind myself that the quantification of general damages in money terms is a matter of the court i.e. the jury proper direction by the judge or by a judge action as the jury where the trial is without a jury. In a majority of cases no precise measure can be indicated. “[General damages] are such as the jury may give when the judge cannot point out any measure by which they are to be assessed except the opinion and judgement of a reasonable man.” Per Martin, B. in Prehn v. Royal Bank of Liverpool (1870) L.R. 5 Exch. 92 at pages 99 to 100.
It was submitted that the award made was “excessive etc”. The question of damages is always a difficult question or problem that the law or judge has to face. This fact cannot be disguised. Notwithstanding that it was said above that the Court of Appeal is always reluctant to interfere with an award of damages made by the judge unless the award made is excessively high or unreasonably low, there are, certainly, no special criteria whereby the appeal court is to judge what is excessively high or unreasonable low.

Guided by and armed with the above-discussed principles, what was the trial Judge’s handling of this problem of the assessment of damages?

Writing at page 52 of the record of proceedings the learned trial Judge expressed himself thus: –

“In B.P.P.C. v. Gwagwada (1989) 4 NWLR (Pt. 1116) 439 at 4456 the court in circumstances of this nature may have resort to inflationary trends currently in vogue at the time the action was instituted or thereafter as the case may be”
The Benue Printing and Publishing Corporation v. Alhaji Umaru Gwagwada case (supra) relied on by the court below is a decision of this court (Coram: Maidama, Mukhtar and Adio, J.J.C.A.). I have read the case with some profit. Part of the
decision dealt with the cross-appeal by the successful respondent in the trial court. The cross appellant was dissatisfied with the award on him of N10, 000.00 as damages.

The Court of Appeal, per Mukhtar, J.C.A. delivering the leading judgement at page 457 said, inter alia: –

” I have no iota of doubt in my mind that the award of N10, 000.00 should be reviewed and increased.”

That court made the award of N35, 000.00. In reaching its decision that court expressed itself at page 456 inter alias: –

“Moreover, the inflationary trend presently existing, coupled with the fast dwindling purchasing power of the naira must also be examined and considered closely”

My Lords, the Gwagwada case (supra) was decided, needless stating the obvious, in 1989. The case giving rise to the present appeal was decided, again I am stating the very obvious, on the 11/6/91. Speaking for myself, my Lords, unless we divorce
ourselves from reality and facts, it is a far cry to ever contemplate that the economy has improved since the decision in the Gwagwada case. No. On the contrary, the economy is much more depressed; the naira has lamentably shamefully depreciated and inflation is spirally very high. My Lords, these are notorious factual situations in the country presently.

I am thus enabled, my Lords, to say that I find justification to interfere with the award of the general damages by the learned trial Judge. Consequently, I resolve the issue No: 3 in the favour of the respondents and against the appellants.

Arguing issue No. 4, counsel had criticised the trial Judge for misconceiving section 148(d) (now section 149(d) of Evidence Act Cap. 112 Laws of the Federation, 1990. It was contended that learned trial Judge, on that account, failed to consider the
evidence of the appellants through Nathaniel Umunna Awaraka at page 31 lines 15 to 31 of the records.

The learned trial Judge had come under fire for holding at page 49 of the record inter alia: –

“Defendant relied on Central Bank to justify its defence to the effect that the Central Bank had no foreign exchange … . Having regard to the express and precise provisions of section 148(d) of the Evidence Act failure to call the Central Bank of Nigeria as witness is fatal to the case of the defendant.”

It was contended that section 148(d) (now 149(d) of the Evidence Act does not deal with a failure to call a witness but instead a failure to produce evidence in the possession of a party. A party, as Mr. Nwadi submitted at page 16 of the appellants’ brief need not summon a particular person as a witness at the trial. Cases, not necessarily for me to carry, were cited and relied upon. The misconception of the law, as it was contended by counsel in the brief, occasioned a miscarriage of justice to the appellants. The submissions by counsel for the respondents in the respondents’ brief in answer to the contentions in the appellants’ brief in support of Issue No. 4 may conveniently be summarised thus:-

There was no misconception or a misapplication of the provisions of section 149(d) of the Evidence Act by the trial court. The appellants having alleged a scarcity of foreign exchange in the Central Bank as a reason for not effecting the remittance of
N23, 810.00 to the Servisol Ltd, England, the evidential burden lay on them to establish that fact. As counsel contended in the brief, the Central Bank of Nigeria Ltd. was, therefore, a material witness for the appellants in order to prove that fact of scarcity of the foreign exchange.

Perhaps in the alternative, counsel at page 15 of the respondents’ brief submitted that no every error or mistake by a trial judge in his judgement will result in the Court of Appeal upturning the judgement appealed from. Again, numerous decided cases unnecessary, in my view to reproduce, were cited.

A comfortable starting point in considering the submissions by counsel, for the purposes of elucidation and clarity, in order to make myself intelligible, I think, is to refer, firstly, to paragraph 3 of the amended statement of defence. The paragraph is unduly lengthy. It covers nearly two pages of the typed foolscap sheets. So, I shall concentrate on the relevant portion thereof for my purpose. Paragraph 3 reads in part as follows: –

“3. Between 1981 and 1985 there was scarcity of foreign exchange in the Central Bank of Nigeria… .”

Testifying in line with paragraph 3 (supra) D.W.1 stated at page 31 lines 17 to 24 of the record as follows: –

“Between 1981 and 1983 there was scarcity of foreign exchange at Central Bank. As a result of that Central Bank could not release all the monies deposited with the defendant by its customers for remittance to their overseas suppliers. Between 1984 and 1988 there was still scarcity of foreign exchange at the Central Bank.”
Now, section 139 of the Evidence Act Cap. 112 Laws of the Federation, 1990 provides that: –

“The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence… ”

Such a person or party must discharge the onus by proving through evidence which will convince the court or tribunal of the probability of his case on the point in issue. See Odiete v. Okotie (1972) 6 S.C. 83; Akinfosile v. Ijose (1960) SCNLR 447;
(1960) 5 F.S.C. 192. In the circumstances of this appeal case proceedings, that person or party was the appellants, qua defendants at the trial.

I reproduced above the relevant portion of the evidence by the D.W.1 on the issue. The question is. Was that evidence accepted by the trial court as convincing or, in proof that there was a scarcity of foreign exchange between 1981 and 1988 in
the Central Bank?

But Mr. Nwadi for the appellants contended that the evidence stood “unchallenged.” Perhaps in his opinion the trial court ought to have accepted it in or as proof of the fact in issue. It seems to me, with respect to the counsel, that there was here a
misconception. This is because relevancy of evidence, Admissibility of evidence and proof are separate and distinct departments in the Law of Evidence; admissibility of evidence is one thing. Its cogency or probative value is quite another matter. Once evidence is admitted, the court will then consider what weight to attach to it. What it proves in the context of the issue in controversy between the parties is for the jury to determine.

Needless stating, and the record demonstrates this clearly, that the D.W.1 is not Central Bank of Nigeria Ltd. He was not an official of the Central Bank of Nigeria Ltd. Could the evidence above by the D.W.1 be proof, really, of the fact of the scarcity of foreign exchange in Central Bank of Nigeria Ltd. between 1981 and 1988?

Under section 149(d) of the Evidence Act the court below is entitled to presume that any evidence which could be and is not produced would if produced be unfavourable to the person or party withholding it.

The trial court, in my respectful opinion, and I read the record of proceedings with some profit, did no more and said no more than held that the appellants did not discharge the burden placed on them by section 139 of the Evidence Act. Accordingly, he held section 149(d) of the Evidence Act against them.

Counsel’s submission that there was occasioned any miscarriage of justice in the manner or style the trial Judge expressed himself, considering section 149(d) of the Act (supra), I find unacceptable. In my view of the record, no miscarriage of justice
occasioned. So, cadit quaetio”, the matter ends.

Admittedly, what section 149(d) requires (and the former Western Court of Appeal did say so in Ganiya Tewogbade v. Arasi Akande (1968) NMLR 404 is that the court be satisfied.

1. that the evidence exists
2. that it could be produced
3. that it has not been produced
4. that it has been withheld.

But all that, in my considered opinion, is another way of saying the same thing, id est, that the person ought to discharge the burden placed on him under section 139 of the Evidence Act. For all and from all I have discussed above, perhaps imperfectly, it only remains for me to say in conclusion that I have no doubt in my mind that issue No. 4 ought, necessarily, to be resolved in favour of the respondents. Accordingly, I do resolve the issue against the appellants.

In respect of the issue No. 5, the submission by counsel in the appellants’ brief concentrated on Exhibit 6 (the exchange risk indemnity). This was the appellants’ main wicket in support of the argument on the issue.

Counsel has submitted at page 16 (the exchange risk indemnity). This was the appellants’ main wicket in support of the argument on the issue.

Counsel has submitted at page 16 of the appellants’ brief, based on his understanding of the respondents’ case as pleaded and presented at the trial, that the respondents’ case was “based on delay” in remitting the money to Servisol Ltd, England. As counsel, further, contended in page 17 of the brief, the alleged delay was occasioned by the embargo on reconciliation of foreign trade debts by the Central Bank of Nigeria Ltd.

Counsel, therefore, submitted that clause 3 of Exhibit 6, recited at page 17 of the appellants’ brief, exempted the appellants from liability to the respondents. The respondents having executed Exhibit 6 cannot now, resile from it. They are estopped.

Concisely stated, this was the submission by counsel in support of the Issue No. 5. For the purpose of completeness, it may need to be mentioned, hic et nunc, that counsel cited the case of Salami v. Savannah Bank of Nigeria Ltd. (1990) 2 NWLR
(Pt.130) 106; S.C.O.A. (Nigeria) Ltd. v. Bourdex Ltd. (1990) 3 NWL (Pt.138) 380 to buttress his learned submission.

The gist of the submissions by counsel in the respondents’ brief is: It is a misconception to think, as the appellants do, that the respondents’ case at the trial court was based on any delays. The appellants failed to effect a remittance to the respondents’ suppliers overseas between 1981 and 1989. Counsel submitted that Exhibit 6 has relevance in the case of the respondents against the appellants. Therefore, Exhibit 6 cannot operate to exempt the appellants from liability. He justified the learned trial Judge’s treatment of Exhibit 6 and urged us to resolve the issue against the appellants. Therefore, Exhibit 6 cannot operate to exempt the appellants from liability. He justified the learned trial judge’s treatment of Exhibit 6 and urged us to resolve the issue against the appellants.

Now, the issue under consideration revolves on the legal consequence, if any, of Exhibit 6 (the exchange risk indemnity).

Parts of Exhibit 6 relevant here, read: –

“Dear Sir,
In consideration of your continuing to handle from time to time my/our transaction involving documentary bills and credits and other foreign remittances: –
… .
3. I/We also acknowledge that neither you nor your agents shall be responsible for any delays in remitting such foreign currency from the Central Bank of Nigeria of (sic) any delays in remitting same.”

I am inclined to think, with respect to the counsel for the appellants, that learned counsel missed the point wholly and entirely.

But how? Because, it is my respectful opinion, counsel did not appreciate full well, the case of the respondents as pleaded and as presented at the trial. And it was the respondents’ case which the appellants were called up to defend. So, the question
naturally arising becomes this.

Q: – Was the respondents’ case as pleaded based on my delays within the context of Exhibit 6 (supra)? If it be not, can the appellants seek for an exemption from liability therefrom?

I did touch on this aspect of the matter earlier on, somewhere in this judgement. Perhaps not full enough or rather imperfectly.

I shall, however, decline to repeat myself, etiam atque etiam”, again and again.
The terms of Exhibit 6 (supra) are clear. They are expressed in simple English. It deals with the responsibility for any delays in obtaining foreign exchange from the Central Bank of Nigeria Ltd and remiting same to the respondents’ suppliers. In my
opinion, to construe Exhibit 6 in the manner counsel for the appellants would want me to do, certainly, would amount to overlooking the facts on which the plaintiffs’ case at the trial was hoisted. And even the defence of the appellants as pleaded!
I confess that I found none of the decided cases cited to us by counsel in appellants’ brief of any assistance.

What was the trial court’s handling of the issue? The learned trial Judge at pages 51/52 of the record of proceedings had written, inter alia, as follows: –
“The exchange risk indemnity dated 27/7/81 defendant’s Exhibit No. 6, in my view did not exonerate the defendant from liability in this matter … . The claim was not based on delay on the part of the defendant but specially on negligence and/or
breach of contract.”

The above conclusion by the learned trial Judge, in my judgement, is flawless. I agree with him wholly and entirely. With respect to the counsel for the appellants, Exhibit 6 has been dragged and pulled by the hair of the head and made to apply in or to this case willy-nilly. This is wrong. It is not right so to do.

My resolution of the issue, therefore, becomes obvious. The issue ought to be resolved in the favour of the respondents. I resolve it against the appellants accordingly.
In the final result, the appeal ought to be dismissed. It is unmeritorious. It is therefore, dismissed by me.

The appellant shall be mulcted in costs in favour of the respondents assessed and fixed at N3, 000.00.

Katsina-Alu JCA agreed with the lead judgement

Nsofor JCA dissented

{Nigerian Cases Referred to in the Judgment}
Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1
Agbonmagbe v. CFAO (1966) 1 All NLR 140
Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt.102) 122
Akinfosile v. Ijose (1960) SCNLR 447
Alraine (Nig.) Ltd. v. Eshiett (1977) 1 S.C. 89
Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731
Armel’s Transport Ltd. v. Transco (Nig.) Ltd. (1974) 11 S.C. 237
B.E.O.O. Industries (Nigeria) Ltd. v. Maduokoh (1975) 12 S.C. 91
B.P.P.C. v. Gwagwada (1989) 4 NWLR (Pt.116) 439
Bello v. A.G. of Oyo State (1986) 5 NWLR (Pt.45) 828
Ebba v. Ogodo (1984) 1 SCNLR 372
Enang v. Adu (1981) 11-12 SC 25
Finnih v. Imade (1992) 1 NWLR (Pt.219) 511
Gukas v. J.I.B. Ltd. (1991) 6 NWLR (Pt. 199) 614
Mogaji v. Odofin (1978) 4 S.C. 91
Obiefuna v. Okoye (1961) 1 SCNLR 144
Odiete v. Okotie (1972) 6 S.C. 83
Odofin v. Ayoola (1984) 11 S.C. 72
Okolo v. Uzoka (1978) 4 S.C. 77
Oshinjinrin v. Elias (1970) 1 All NLR 153
Osuji v. Isiocha (1989) 3 NWLR (Pt.111) 623
S.C.O.A. (Nig.) Ltd. v. Bourdex Ltd (1990) 3 NWLR (Pt. 138) 380
Salami v. Savannah Bank of Nig. Ltd. (1990) 2 NWLR (Pt. 130) 106
Shell B. P. Petroleum Dev. Co. Ltd. v. Jamal Eng Ltd. (1995) 9 NWLR (Pt.421) 558
W.A.S.A v. Kalla (1978) 3 SC 21
Williams v. Daily Times of Nig. (1990) 1 NWLR (Pt.124) 1
{Counsel}
J. C. Nwadi, Esq. – for the Appellant
Respondent unrepresented