3PLR – UNITED BANK OF AFRICA LIMITED V. JULIUS A. IBHAFIDON
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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UNITED BANK OF AFRICA LIMITED
V.
JULIUS A. IBHAFIDON
COURT OF APPEAL (BENIN DIVISION)
CA/B/155/91
FRIDAY 16TH APRIL 1993
3PLR/1994/95 (CA)
OTHER CITATIONS
1 NWLR PART 318 PG 90
BEFORE THEIR LORDSHIPS
JUSTIN THOMPSON AKPABIO;
AKINTOLA OLUFEMI EJIWUNMI;
JAMES OGENYI OGEBE.
REPRESENTATION
A.A. Omorodion – for appellant
Chief D. O. Ihensienkhien SAN – for respondents
MAIN ISSUES
BANKING – Nature of relationship between banker and customer, meaning and distinction between cheque and bank draft
BANKING – Persons authorised to maintain and operate foreign currency domiciliary accounts, offences created thereunder
CONTRACT – Specific performance of contract in foreign currency
CRIMINAL LAW AND PROCEDURE – Proof and onus of proof of allegation of crime – on whom it lies
PRACTICE AND PROCEDURE – Whether court can grant relief not claimed by parties
MAIN JUDGEMENT
AKINTOLA OLUFEMI EJIWUNMI Delivering Leading Judgement
This action was commenced by the plaintiff in suit No. B/122/87 in the Benin Judicial Division of the former Bendel State High Court before Obi, J. and the claims of the plaintiff by his writ of summons are as follows:-
“The plaintiff claims against the defendant as drawer bank draft No. 031069 for US$33,613.00 dated the 10th day of November, 1986 drawn upon the defendant payable to the plaintiff.
The said draft was duly presented for payment on the 18th day of November, 1986 and was dishonoured; and although the defendant had due notice thereof by letter No. CC1/28487 of 13th March, 1986 from plaintiff’s solicitors followed by another letter from plaintiff’s solicitors, the defendant not pay the said draft.
PARTICULARS
Principal due US$33,643.00
Interest at 15% per annum 4,797.00
—————
AMOUNT DUE US$38,440.00
—————
Plaintiff also claims interest on the said US$33,643.oo at the rate of 15% per annum from the 6th of April, until payment or judgment.
Dated at Benin City this 9th day of November, 1987
(Sgd)
Chief C.O. Ihensekhien
Plaintiff’s Solicitor”.
Pleadings were ordered, filed and exchanged, and with leave they were further amended.
From the pleadings so filed and the evidence at the trial, the plaintiff’s case may be put thus: The plaintiff, it is claimed said that he met Mr. Ehinola when he was introduced to him and that it happened that Mr. Ehinola informed the plaintiff that he had in his domiciliary account with the defendant a large sum of money in dollars, some of which he offered to sell to the plaintiff at the rate of N4 to one US dollars. It would appear that while he was not willing to take advantage of this offer, it is clear that he was not willing to do so unless he was sure that Mr. Ehinola had the money in his domiciliary account as claimed. In order to confirm the claim of Mr. Ehinola and to ascertain the liquidity position of the account, the plaintiff went with Mr. Ehinola to defendant’s central branch in Lagos. There, Mr. Ehinola applied to withdraw the sum of US$33,643.00 from his account. Whereupon, the bank official who saw them told them to come back the following day. When they get there as directed, the plaintiff was informed that he could proceed with the foreign exchange transaction with Mr. Ehinola as his account with the Bank is in sufficient funds to accommodate the amount applied for by Mr. Ehinola. The plaintiff claimed that in the presence of the Bank official concerned, the naira equivalent of 33,643.00 US dollars which was N134,572.00 (One hundred and thirty four thousand, five hundred and seventy two naira) was handed over to Mr. Ehinola. Therefore, it is claimed, the defendants, through one of his official drew up the bank draft No. 031069 for $33,643.00 in favour of the plaintiff. The draft was then handed over immediately to the plaintiff who with the draft in his possession returned to the defendant’s branch in Benin City where he was advised that he would be able to encash the sum on the draft issued to him by the Bank. Upon the presentation of the draft at the draft at the defendant’s branch in Benin City for payment as aforesaid he was advised to open an account with the draft. The plaintiff complied with this advise on 18/11/86. On that day he was allocated his account Number FCA/COO3 and was also issued with a teller exhibit 1 with which he paid the draft into his account with the bank. He was then asked to call back at the bank after 21 days to collect the proceeds of the draft. On 21/12/86, when he called at the bank, he received nothing. Rather the bank official whom he saw explained to him that nothing has been heard from their head office in Lagos. After several abortive calls at the bank to encash the draft, the plaintiff had to engage the services of a solicitor to press his claim. It was the failure to collect his money from the bank that precipitated this action as the defendant’s bank wrote a letter to the plaintiff repudiating any payment on the draft.
From its pleading and the evidence led, the case for the defendant is that the domiciliary account of Mr. Ehinola’s was funded from a forged foreign draft. It is also the case for the defendant that at no time was the plaintiff informed of the money standing to the credit of the said Mr. Ehinola’s domiciliary account with the defendant. It is also the case for the defendant that the plaintiff is not entitled to recover the proceeds of the draft as the transaction or arrangement he made with Mr. Ehinola is illegal and the defendant cannot be bound with such an illegal transaction. In this regard the defendant called in aid the provisions of the Foreign Currency (Domiciliary Accounts) Decree 18 of 1986 which it is claimed forbid transactions in foreign exchange other than with an authorised dealer. It is also the case for the defendant that the bank was not a party to or privy to the sale of foreign currency by Ehinola to the respondent and claimed that it merely acted as a conduit pipe or an accommodation party in the drawing up and issue of the draft or bill in favour of the plaintiff.
After hearing the evidence called by both sides and the addresses of their learned counsel, the learned trial Judge delivered a very well considered judgment. By that judgment the claims of the plaintiff were upheld and he was awarded the sum of US$33,643.00 with interest at 10 per cent from the date the judgment was delivered until the entire judgment debt is liquidated. Also, costs in the sum of N700.00 was awarded in favour of the plaintiff.
The defendant not satisfied with the judgment and orders of the lower court has appealed to this court upon seven grounds, of appeal, which are now reproduced without their particulars.
“(1) The decision of the learned trial Judge is against the weight of evidence.
(2) The learned trial Judge erred in law when he rejected the defence of justification for the cancellation and non-payment of the draft or bill (Exhibit 1A) pleaded and put forward by the defendant when he held as follows, “I have no hesitation, for these various reasons, in coming to the conclusion that forgery as alleged by the defence is not established and consequently, that this dishonour and cancellation of exhibit 1A on that score is wrong and unjustifiable in law”.
(3) The learned trial Judge erred in law when he held the defendant liable to the plaintiff on exhibit 1A under and pursuant to section 51(1) (a) of the Bill of Exchange Act. Cap 21, Laws of the Federation of Nigeria, 1958 when the said provision of law was inapplicable to the fact of this case.
(4) The leaned trial Judge erred in law when he held that the defence advanced in paragraph 21 of Further Amended Statement of Defence No. 3 is not tenable in law and rejected it is akin to the proverbial attempt of a drowning person trying to catch every straw.
(5) The learned trial Judge erred in law when he held that the defence of illegality which was set up by the defendant in the pleadings and at the trial was not made out in law and in fact and so rejected it.
(6) The learned trial Judge erred in law when he awarded the plaintiff as damages, the face value of Exhibit 1A in dollars or foreign currency instead of the Naira equivalent at the rate of exchange prevailing when the cause of action for the non-payment of exhibit 1A accrued, if at all, to the plaintiff.
(7) The leaned trial Judge erred in law when he awarded the plaintiff post judgment interest under and pursuant to order 40 Rule 7 of the High Court (Civil Procedure) Rules of Bendel State, 1988, which is in pari materia with order 29 Rule 7 of the High Court (Civil Procedure) Rules, Cap. 65, Laws of Bendel State, 1976, and did so, at the maximum rate of interest when the order and Rule has not been brought into play in this case”.
Briefs were subsequently filed and exchanged in accordance with the Rules of this court. In the brief filed for the defendant now appellant, seven issues were thought desirable by its counsel for the determination of this appeal. They read:-
“(i) Whether forgery by inflation of the amount or real value of the draft or cheque with which Ehinola opened a foreign currency domiciliary bank account with the appellant was proved.
(ii) Whether that fraud or forgery afforded justification or good reason for the cancellation and non-payment of exhibit 1A.
(iii) Whether respondent as the payee of the said draft or bill, that is, Exhibit 1A, has in law a right of recourse against the drawer, that is, the appellant in the circumstances of this case.
(iv) Whether illegality or the facts of illegality are disclosed in relation to exhibit 1A.
(v) Whether exhibit 1A can be enforced against the appellant, notwithstanding the said illegality.
(vi) Whether the learned trial Judge was right in awarding to the respondent by way of damages, the face value of exhibit 1A in US dollars or foreign currency, and, whether he was right to have awarded post-judgment interest too.
(vii) Whether the Benin City High Court of Edo (formerly Bendel State) had jurisdiction to hear and determine this action rather than High Court of Lagos State”.
The plaintiff now to be referred to as the respondent, in his brief filed on his behalf by Chief C.O. Ihensekhien, S.A.N., the issues set down in the appellants were adopted, and two other issues which he thought should also be considered in the determination of the appeal were added thus:
(viii) Whether the transaction between Mr. B. Ehinola who is the customer of the appellant which gave rise to the issuance of the bank draft Exhibit 1A by the appellant to the respondent was illegal under Decree No. 18 of 1985 and No. 23 of 1986.
(ix) Whether the alleged subsequent discovery of forgery in the New York City Bank Account of B.J. Ehinola was proved before the High Court and if proved whether such a forgery justified the appellant’s subsequent dishonour of its own verified and certified bank draft”.
It seems to me however that these issues, framed by the appellant, if this may be so called, have not been framed to reflect the rules of this court with regard to the formation of issues for the determination of an appeal. The first principle that must be observed is that every issue in an appeal must arise from one of more grounds of appeal. It cannot be right if every filed issue is raised thereon.
On this, it is very helpful to refer to the views of Nnaemeka-Agu, J.S.C. which he succinctly expressed in African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 391 at 410, where his Lordship said;
“It is usual for one, two or more grounds of appeal to constitute an issue, not the other way around. The reverse could not have arisen if counsel had done well to remember what an issue in an appeal really is”.
In this respect I may repeat what I stated in Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at P. 581 where I said:
“An issue is that which, if decided in favour of the plaintiff, will in itself give a right of relief, or would, but for some other consideration in itself give a right to relief; and if decided in favour of the defendant will in itself be a defence'”
So it is in an appellate brief, mutatis mutandis. It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue, more often than not it takes a combination of such facts or grounds to raise an issue. The acid test is whether the legal consequences of that ground or fact, or a combination of these grounds or facts as framed by the appellant, if decided in favour of the appellant, will result in a verdict in his favour. For as Lord Diplock put it in Fidelitas Shipping Co. Ltd. v. V/O Exportleb (1966) 1 Q.B. 630 at P. 642 –
“But while an issue may thus involve a dispute about facts, a mere dispute about facts divorce from their legal consequences is not an issue”.
In the instant appeal, a study of the grounds of appeal and the issues set down for determination by the appellant is remarkable for the breach of the yardstick for settling issues in an appeal. These issues apart from being unduly argumentative are a mere repetition of the grounds of appeal. I think that the two issues formulated preferable to issues (i-v) as the complaints of the appellant against the judgment of the lower court are admirably put in a nutshell in these two issues. In addition to these two issues, I will also add issue vi raised by the appellant in its brief. The seventh issue would however be struck out as there is no ground of appeal relevant to that issue among the grounds of appeal filed by the appellant. For clarity, the issues that falls to be considered in this appeal are the following –
“(i) Whether the transaction between Mr. B. Ehinola who is the customer of the appellant which gave rise to the issuance of the bank draft Exhibit 1A by the appellant to the respondent was illegal under Decree No. 18 of 1985 and No. 23 of 1986.
(ii) Whether the alleged subsequent discovery of forgery in the New York City Bank Account of B.J. Ehinola was proved before the High Court and if proved whether such a forgery justified the appellant’s subsequent dishonour of its own verified and certified Bank Draft.
(iii) Whether the learned trial Judge was right in awarding to the respondent by way of damages, the face value of exhibit 1A in US dollars or (sic) foreign currency, and, whether he was right to have awarded post-judgment interest too”.
In the brief of learned counsel for the appellant the question raised by the first part of issue (ii) which is whether the cheque paid by Mr. Ehinola into his Domiciliary Account No. 110 with the appellant at its central branch, Lagos was proved as a forgery by the appellant during the trial. On this question, it is argued for the appellant in its brief that the learned judge was wrong to have concluded that the cheque was not established as a forgery. It is contended that Exhibit 4 and 6 tendered by the appellants constitute sufficient proof that the cheque was a forgery. For the respondent, the contention made for him in his brief is that the lower court was right to have concluded that the forgery of the alleged cheque paid by Mr. Ehinola into his domiciliary account with the appellant was not proved.
The learned trial Judge considered the question raised at pages 121-123 of the record of proceedings. At page 121, after observing that the draft exhibit 1A was dishonoured or cancelled on account of the alleged forgery of the foreign draft with which Mr. Ehinola opened his domiciliary account with the appellant’s bank in Lagos the learned trial judge then examined the evidence and the pleadings thus –
“That issue is raised in paragraph 16 of the defence and evidence was led in support of it, by two documentary evidence Exhibits ‘4’ and ‘6’. Exhibit 4 is the telex message sent by Citibank of New York by which the defendant/bank was informed that the bank draft for the said sum of US$100,000.00 has been cleared consequent upon which Ehinola’s account was credited with the said amount.
It would appear that the Citibank of New York cleared the draft and remitted the money to the defendant/bank, before sending the draft (cheque) to the payee bank, the Girobank of London which at that point in time, alleged that it is a forged draft. It was in the frantic effort to stop payment of if payment already made, for its recovery form Mr. Ehinola, that prompted telex message which in part reads:
…………………We received a cheque drawn in National Giro Bank, London’s A/c with Citibank of New York (stop).
These proceeds were to be credited to your a/c 110 the benefit of Mr. B.J. Ehinola. The cheque was DD6/18/18 and the cheque No. 089076 (stop)
These proceeds were remitted to yourselves on 10/22/86 and debited to our customer, our customer has now advised us that this cheque is a forgery of a previous cheque that was only for US$118.48 (stop).
Please urgently contact your customer for a refund of these proceeds as we unfortunately have processed a fraudulent cheque ……………”
It is clear from the evidence led that Exhibit 1A was cancelled following the receipt of the telexes.
And the learned trial Judge after listening to addresses of counsel which are similar to what was repeated in their respective briefs of argument in this appeal, then said –
“Learned Senior Advocate of Nigeria is of the view that evidence led in proof of the alleged forgery is rather slipshod and I am inclined to agree with him. This is moreso because the particulars of Mr. Ehinola’s account were neither pleaded nor given in evidence and having regard to the difference in the forenames (or rather the initials) between the person draft is alleged forged, and Mr. Ehinola from whom the plaintiff derived his own draft, it is difficult to come to the conclusion that they are one and the same person”.
Then the learned judge commented on the failure of the appellant to give conclusive evidence about the outcome of the police investigation into the alleged report that Mr. Ehinola was handed over to the Police in connection with his role in this matter. He also commented on the lack of evidence concerning Mr. Ehinola’s cheque that was paid into his account with the appellant and any evidence about the cheque itself. The learned trial Judge also noted the failure of the appellants to tender what described as “an affidavit of forgery as per exhibit 6”. Thereafter the learned trial Judge then held thus:
“To be taken seriously on this issue, it is my view that the officials of the National Girobank who are alleging forgery should have been called to shed light on the matter. I have no hesitation, for these various reasons in coming to the conclusion that forgery as alleged by the defence is not established and consequently, that the dishonour and cancellation of Exhibit 1A on that score is wrong and unjustified in law”.
The question then is whether the judge was right to have held that the appellants did not establish that the draft paid in by Mr. Ehinola was a forgery. It is settled law that the burden lies on whoever alleges. It is beyond doubt that by the pleadings it is the appellant who had alleged that the cheque of Mr. Ehinola was a forged one, and therefore the burden lies on the appellant to established beyond reasonable doubt that the said cheque was forged. As already observed the only evidence led by the appellant are the telex message, Exhibit 4 and a letter Exhibit 6 dated March 16, 1987 from the Citibank of New York wherein the appellant was informed by Citibank, New York the information given to it by the National Girobank that the cheque paid by Mr. Ehinola into his foreign domiciliary account with the appellant was a forgery. The cheque itself was not made available at the trial nor was Mr. Ehinola called to give evidence by both sides to the dispute.
It must be noted that learned counsel for the appellants sought to tender the photocopy of the cheque which was forwarded to the appellant with the letter Exhibit 6. The learned trial Judge properly refused to admit it, and that in so far as there is no appeal against that ruling. I need not say any more thereon. It is therefore clear that the only evidence before the trial court consist of the telex Exhibit 4 and the letter Exhibit 6.
In my opinion, the evidence led by the appellant cannot be held to be proof beyond reasonable doubt that Mr. Ehinola’s cheque was forged. It is one thing for the officials of the Banks abroad, i.e. The National Giro-bank and Citibank who conclusion, the appellant require under our law to lead such evidence to prove beyond reasonable doubt its allegation of forgery. See S. 137(2) Evidence Act, Ikoku v. Oli (1962) 1 SCNLR 307; (1962) 1 All NLR (vol.1) (Pt. 1) 194 at p. 199; Adeloja v. Franoiki (1990) 2 NWLR (Pt. 131) 137 at 153. I therefore uphold the view held by the learned trial Judge that the appellant did not establish according to law its allegation of forgery against the cheque paid into the Domiciliary Account of Mr. Ehinola with the appellant.
I will for the moment leave the consideration of the second part of this issue which has to do with whether the appellant was right to have refused to honour its own verified and certified bank draft. This is because I think that the 1st issue dealing with whether the agreement between Mr. Ehinola and the respondent was illegal should next be considered before considering whether the draft issued to the respondent was properly dishonoured or not.
On whether the agreement to sell and buy foreign exchange which in this case is in dollars, the premise upon which the appellant is contending that the transaction in this regard between the respondent and Mr. Ehinola is illegal are the following legislation: The Exchange Control Act, 1962, the Foreign Currency (Domiciliary Accounts) Act 1985 and second Tier Exchange Market Act 1986, Caps. 113, 151 and 405 of the Laws of the Federation of Nigeria, 1990 respectively.
It is therefore the contention of learned counsel to the appellant in the appellant’s brief that there was evidence of sale and purchase of foreign currency between Mr. Ehinola and the respondent in respect of the foreign money, namely, dollars deposited by the said Mr. Ehinola in the domiciliary account maintained with the appellant in its Lagos Central Branch. That as it is evident that the respondent was not an authorised dealer in foreign exchange within the meaning of the Exchange Control Act and the Foreign Currency (Domiciliary Accounts) Act of 1985, the transaction was illegal as such a transaction is prohibited by virtue of the above laws. It is further argued for the appellant that it is immaterial that Mr. Ehinola used medium of the appellants bank to transfer the foreign currency instead of withdrawing the money himself from the appellants bank with the purpose of transferring same to the respondent. Learned counsel to the appellant has further argued that the proceeding agreement between Mr. Ehinola and the respondent that resulted in the draft Exhibt 1A, being illegal as aforesaid the appellant is entitled to place reliance on the defence of illegality. Upon that view of the evidence, the pleadings and the law it is the submission of the learned counsel to the appellant that the learned trial judge misdirected himself when he held that the defence of illegality is not tenable on the facts and law.
It is further submission of learned counsel that as the illegality complained of arose by statute, the learned trial Judge ought to have given effect to it, and not discountenanced it. Hence, he argued that the learned trial Judge was in error to have allowed the respondent to recover the face value of exhibit 1A. In support of the above submission, learned counsel to the appellant invited our attention to the following cases: Wolf v. Hamilton (1898) 2 Q.B.. 337; Sodipo v. Lemmikainen OY (1986) 1 NWLR (Pt. 15) 220 at pp. 224-225.
Replying learned Senior Advocate to the respondent contends in the respondent’s brief that the statutory defences contained in the Bill of Exchange Act etc., having not been pleaded, the appellants cannot now raise them in this court. In support of this contention, reference was made to the following cases: Akpene v. Barclays Bank of Nigeria (1977) 1 S.C. 47 at 84; Adegbola v. Obalaja (1978) 2 LRN 164; Malomo v. Olushola 15 WACA 12.
With due respect to learned Senior Advocate, I must immediately reject the submission that the appellant did not plead the statutes that it was relying upon to support its contention that the transaction and or agreement between the respondent and Mr. Ehinola is tainted with illegality. While it may be conceded that the appellant ought to have given the sections of the law upon which it is relying. I will take the pleadings as sufficient in the circumstances that illegality and the statutes relevant thereto were duly pleaded. This is moreso where the learned trial Judge had duly noted the various section of the Acts which he deemed relevant in his judgment when he has was considering paragraphs 9 and 10 of the appellants pleading in its further amended statement of defence. They read thus:-
“9. In further answer to paragraph 7 of the amended statement of claim the defendant will contend at trial that it is impossible for the defendants bank to advise a customer to sell foreign currency to a third party which is not an authorised dealer. It is illogical to trade in foreign currency (buy or sell) unless the dealer is authorised. It will be shown at trial that only bank and designated hotel are authorised dealers in foreign exchange. All material times to this action, the plaintiff and the said Mr. Ehinola were not authorised dealers in foreign currency.
- In further answer to paragraph 3 of the plaintiff’s amended statement of claim, the defendant will contend at trial that the said business transaction the plaintiff and the said B. Ehinola involving foreign currency was at all material times to this action illegal under the Decree No. 18 of 1985 and Decree No. 23 of 1986″.
As the arguments on this issue revolve upon the provisions of the Foreign Currency (Domiciliary Accounts) Act, Cap. 151 of the Laws of Federation of Federation of Nigeria, 1990. For the purposes of the question raised under this issue, I will reproduced the provisions of section 1, subsection (1), (2) and (3); section 3, sub-section (1),(2),(3),(4),(5) and (6), (1) sub-sections (a) & (d) of the said Act. They read
“Section 1(1) Notwithstanding anything to the contrary containing in any other enactment, including the Bills of Exchange Act, the Central Bank of Nigeria Act, the Exchange Control Act, and the Exchange Control (Anti-Sabotage) Act, as from the coming into force of this Act, it shall be lawful for the persons specified in subsection (2) of this section to open, maintain and operate domiciliary accounts designated in foreign currency in any of the following banks, that is to say –
Thereafter a list of 16 banks that were so authorised to open, maintain and operate domiciliary accounts in foreign currency was then given including the appellant, United Bank for Africa. Thus by section (1) of the Foreign Currency Domiciliary Act.
(2) The persons referred to in subsection (1) of this section authorised to open, maintain and operate domiciliary foreign currency accounts are as follows –
(a) Citizens of Nigeria;
(b) aliens resident in Nigeria;
(c) bodies, corporate and incorporate, registered under the relevant laws operative in Nigeria;
(d) foreign diplomats, diplomatic and consular missions and international organisations; and such other persons as the president, Commander-in-Chief of the Armed Forces may, from time to time, designate in an order published in the Federal Gazette;
(3) The foreign currencies in which an accounts may be opened, maintained and operated area as follows:-
(a) the United States dollars;
(b) the British pound sterling;
(c) the French franc;
(d) the Deutshe mark;
(e) the Swiss franc; and
(f) such other foreign currency as the President, Commander-in-Chief of the Armed Forces may, from time to time, by order published in the Federal Gazette, prescribed”.
There can be no doubt that by virtue of the above quoted provisions of the Foreign Currency Domiciliary Accounts Act, the government has authorised and therefore permitted banks which by that legislation are, sixteen in number to open, maintain and operate domiciliary accounts in foreign currency and which by reason or present legislation had been limited to the following currencies;
(a) the United States dollar,
(b) the British pound sterling
(c) the French franc;
(d) the Deutshe mark; and
(e) the swiss franc.
To this list could be added other foreign currencies from time to time by order of the President, Commander-in-Chief of the Armed Forces which shall be published in the Federal Gazette. Also it is clear from the provisions of subsection 2 of section 1 of the Act (supra) that persons who are citizens of Nigeria; aliens resident in Nigeria; bodies, corporate and incorporate, registered under the relevant laws operative in Nigeria, foreign diplomats, etc and such other persons as the President, Commander-in-Chief of the Armed Forces may, from time to time designate in an order published in the Federal Gazette.
Now the relevance of the above quoted provisions of the Foreign Currency Domiciliary Accounts Act (supra) to the instant appeal is to show first that the appellant/bank United Bank for Africa Ltd. is one of the Banks authorised to open, maintain and operate domiciliary foreign currency accounts; secondly, that a Nigeria citizen such as Mr. Ehinola is also authorised to open, maintain and operate domiciliary foreign currency accounts. It is I think right to observe that there is no dispute about status of the appellant and Mr. Ehinola to open, maintain and operate domiciliary accounts as the evidence show in the record of proceedings. But before I consider the views of the learned trial Judge on the legality of the transaction leading to the issuance of the draft Exhibit 1A to the respondent, I wish to refer to section 2(1) and section 3(1), (2), (3), (4) and (5) of the Foreign Currency Domiciliary Accounts Act (supra) for the procedure for opening and withdrawing of any foreign currency deposited with an authorised bank by a deposition. They read:
“section 2(1) Every application for the opening of a domiciliary foreign currency account (hereafter in this Act referred to as “an account”) shall be made in Form FCA 1, as specified in part A of the schedule to this Act.
Section 3(1) On opening an account, the bank shall issue the depositor with a passbook as in form FCA 3 in part B of the schedule to this Act and all transactions relative to the account shall be reflected in such passbook.
(2) Any application for the deposit of money into an account shall be made on Form FCA 2A and FCA 2B in part C of the schedule to this Act.
(3) Any person who wishes to withdraw the naira equivalent of the foreign currency standing to the credit of his account shall sell the said foreign currency to the Central Bank of Nigeria at the prevailing exchange rate and the holding bank shall, after deducting its services in naira, transfer the balance of the foreign currency to Central Bank of Nigeria.
(4) A depositor who wishes to withdraw any foreign currency from an account affected by this Act shall complete Form FCA 4 in part D of the schedule to this Act and shall not be required to give prior notice to the bank for the withdrawal.
(5) All transactions relative to an account shall be conducted in person by the depositor.
(6) Withdrawal from an account shall only be made from the branch of the bank in which the account is maintained.
(7) A depositor shall forthwith report the loss or destruction of his passbook to the bank by which it is issued.
(8) No transaction relative to an account shall be made and no foreign currency withdrawn from an account shall be disposed of outside the banking system or in any wise howsoever in contravention of this Act.
(9)…………………………………………………………………………………………”
It is manifest from the clear provisions of the Act which I have reproduced above that the steps that must be taken by a depositor of foreign currency from his bank who wishes to withdraw such foreign currency from his bank have been carefully laid down. It is clear that apart from the fact that when opening the account the depositor must be issued with a passbook as in Form FCA 3 in part B, he is also required when applying to deposit the foreign currency make the application on Forms FCA 2A and FCA 2B in part C of the schedule to this Act. It is also interesting to note that when a person wishes to withdraw the naira equivalent of such money from the bank, the depositor is obliged to sell the said foreign currency to the Central Bank of Nigeria at the prevailing exchange rate and the holding bank after deducing its service charges in naira, transfer the balances of the foreign currency to the Central Bank of Nigeria. Other important provisions of this section of the Act are that all transaction relative to an account shall be conducted in person by the depositor, and that withdrawal from an account shall only be made from the branch of the bank in which the account is maintained. Then there is the all important provision that no transaction relative to an account shall be made and no foreign currency withdrawn from an account shall be disposed of outside the banking system or in any wise howsoever in contravention of this Act. For now I will defer further comments on the above provisions of the Act until I shall have considered the arguments by counsel on the views of the learned trial Judge on the illegality of the transaction between the respondent and Mr. Ehinola. In the meantime it is also desirable to refer to section 6(1) of the Act which fall for consideration in the lower court. The provisions of section 6(1) of the Act read:-
“6(1) Any person who –
(a) being a depositor withdraws from an account affected by this Act any foreign currency and sells such currency to an unauthorised dealers whether in Nigeria or outside Nigeria.
(b) With an intent to defraud, forges, mutilates, utters or defaces any passbook maintained pursuant to this Act;
(c) being a bank, converts the proceeds of any foreign account maintained in such bank to a use for which it was not intended; or
(d) being a depositor, negotiates any draft, foreign bank note, or negotiate instrument otherwise then through the banking system”.
A careful reading of the above provisions of section 6(1), (a), (b), (c) and (d) of the Act show plainly that the offences created by the said section of the Act are directed against a depositor of domiciliary account, the holding bank or a customs officer. It is evident that no offence attaches to a person who like the respondent entered into an agreement to buy foreign exchange from a depositor. The illegality which is the subject of the complaint in this issue must be sought for elsewhere. The learned trial Judge in the course of his judgment came to the following conclusion on the alleged illegality when he said thus:-
“That I believe is the truth in the account given by the plaintiff in particular is that he paid the naira equivalent value of Exhibit 1A in the presence of the bank officials who assured him with the consent of Mr. Ehinola and in his presence, that his domiciliary account was in sufficient funds to accommodate the value of the draft and there and then, issued the draft which was handed over to the plaintiff. I agree also that by the admission in paragraph 3 of their letter exhibit “2A” that the bank draft issued to the plaintiff connotes the legal signification that the draft was indeed, delivered to the plaintiff by the bank. The defence which advanced the contrary intention that it was Mr. Ehinola who collected the draft tried to tender dispatch book to the substantiate that contention but later abandoned the idea”.
The learned trial Judge then considered the provisions of section 4 and 19 (c) of the Second Tier Foreign Exchange Market Act of 1986, before concluding that the transaction relative to Exhibit 1A cannot be an illegal transaction. On the basis of the law and the evidence before him, the learned trial Judge then held thus:-
“But on the facts found established in this case the plaintiff is not shown to have negotiated any draft. All he did was the purchase of Exhibit 1A from Mr. Ehinola through the defendant admittedly, an authorised dealer. The transaction is therefore, one permitted under Decree No. 23 of 1986 and not illegal as contended by the defence”.
The question then is whether the learned trial Judge was right to have held that the transaction between the respondent and the depositor, Mr. Ehinola was not illegal. For the appellant it is contended that the transaction was illegal and the respondent is therefore not entitled to succeed in his claim. In support of this argument reference was made to Woolf v. Hamilton (1898) 2 Q.B. 337. For the respondent the contrary argument was advanced in the respondent’s brief and it is urged that this court should uphold the judgment of the lower court.
In view of the argument advanced by learned counsel for the appellant and the learned counsel for the appellant and the learned Senior Advocate for the respondent in their respective briefs and the pleadings of the parties, it is clear that the illegality of the transaction has to be considered in the light of the relevant provisions of the Exchange Control Act 1962, the Foreign Currency Domiciliary Accounts Act, 1985 and the 2nd Tier-Foreign Currency Exchange Market Act 1986 (Caps 113, 151 and 405 of the Laws of the Federation of Nigeria 1990). In this regard it is relevant to refer to the case of Sodipo v. Lemminkainen (1986) 1 N.W.L.R. (Pt. 15) 220. In that case the issue before the Supreme Court turned on whether the claim before the court is ex facie illegal.
The brief facts being that the appellant was sued by the respondent for the recovery of various sums of money in US Dollars and sterling which the appellant received at various times from the respondent. The court therefore had to consider the provisions of section 3(1) and (2) of the Exchange Control Act, 1962, which read thus:-
“3(1) Except with the permission of the Minister, no person other than an authorised dealer, shall in Nigeria and no person resident in Nigeria other than an authorised dealer, shall, outside Nigeria, buy or borrow any gold or foreign currency from or sell or lend any gold or foreign currency to any person other than an authorised dealer.
(2) Where a person buys or borrows any gold or foreign currency in Nigeria, or being a person resident in Nigeria, buys or borrows gold or foreign currency outside Nigeria, he shall comply with such conditions as to the use which it may be put on the period for which it may be retained as may be modified by the Minister before, or at the time of, such purchase or borrowing, or at any time thereafter”.
Commenting upon the above provisions of the Exchange Control Act, 1962, karibi-Whyte, J.S.C. at pages 238-239 said:-
“There is no doubt that the provision of section 3 of the Exchange Control Act 1962 is applicable to person resident in Nigeria. This is whether they are Nigerians or non-Nigerians. This is because in Nigeria only an authorised dealers is allowed to buy or borrow or sell or lend in foreign currency in or outside Nigeria. Any other person may do the same only with the permission of the Minister. It follows accordingly that the prohibition of the statute is against the transaction in foreign currency by or with persons resident in Nigeria. I agree entirely with the reasoning of Nnaemeka-Agu J.C.A. that:
“the essence of the Exchange Control Act of 1962 is to guard against a breach of its provisions by persons carrying on foreign exchange transaction in Nigeria”.
It will be more correct to add also that it protects the Nigeria currency from munition by transactions from persons resident in Nigeria who are not authorised dealers carrying on foreign exchange transactions in or outside Nigeria. The emphasis is on transactions concerning foreign exchange by a person resident in Nigeria who is not an authorised dealer with any person in or outside Nigeria”.
I have before now set down what I consider to be relevant provisions of the Foreign Currency Domiciliary Accounts Act, and it is necessary to reproduce them again. It is only necessary that I should refer to the provisions of section 5(1) and 7 of the Second-Tier Foreign Exchange Act (Cap 405) of the Laws of Federation of Nigeria, 1990. With regard to section 5(1) it is plan that by its provisions the makers of the legislation intended and emphasised that before a bank or non banking corporate organisation could deal in Foreign Currency the Minister must have appointed such a Bank or non-Banking corporate organisation as an authorised dealer. And in section 7 of the Act (supra) the following provisions are made:
“The market shall be structured along the inter-bank system that is to say-
(a) dealings between the public and authorised dealers appointed under this Act.
(b) dealing between the authorised dealers appointed under this Act interse; and
(c) weekly biddings and price fixing sessions between authorised dealers appointed under this Act on the one hand and the Central Bank on the other hand”.
It is clear that from the several provisions of the Foreign Currency (Domiciliary Accounts) Act and the Second-Tier Exchange Market Act, thought the government of the Federation of Nigeria, has by the above legislations sought to allow anyone who has foreign currency to bring such money into the bank that had been appointed authorised dealers by the Minister vested with such powers by the government. It is also clear that by virtue of the provisions of Foreign Currency (Domiciliary Accounts) Act a number of the Banks have been duly appointed as authorised dealers, and it is also plain from that Act that citizens of Nigeria and other person within the provisions of section (2) of the Act are also authorised to open, maintain and operate domiciliary foreign currency with obviously bank that has been duly appointed an authorised dealer. Now to my mind though by virtue of the provisions of Foreign Currency Domiciliary Accounts Act a person is permitted to withdraw his foreign currency from an authorised dealer, and in the second Tier Foreign Exchange Market Act, such dealings shall be structured along the inter-bank system the emphasis in the two legislations appears that either of the two transactions must be with a Bank that had been duly appointed as an authorised dealer. It is therefore right to say that the essence of requiring that any transactions in foreign exchange shall be either between the public and an authorised dealer, or between authorised dealers interse, or between authorised dealers and the Central Bank through its weekly bidding; is to ensure that these authorised dealers, namely the Banks, are to ensure that the Nigeria Currency is protected by ensuring that dealings between the Nigeria Currency and Foreign Currencies are conducted strictly in accordance with all the enabling laws, and that the Nigeria Currency is protected from such transactions as would diminish or lower unnecessarily the value of the Nigerian currency in the light of the value of the foreign currency against which they are trading.
Be that as it may, the question still is whether Mr. Ehinola and the respondent formed an illegal transaction either in the process of the issuance of the draft Exhibit 1A to the respondent and/or as a prelude to the issuance of the said draft. In my view I hold that the transaction or agreement cannot be treated in isolation of what transpired between them and the officials of the appellant at its Lagos Branch Office. I take this position in the light of the undisputed evidence that the discussion on the sale and purchase of the dollars which Mr. Ehinola claimed to the respondent that he had was predicated upon whether he had such money in the appellant’s bank. The respondent did not obviously agree to the transaction until depositor that the account of the depositor, Mr. Ehinola with the appellant could accommodate the amount of dollars which the respondent was to purchase from the depositor, it seems to me that the information given to him by the officials of the appellant that clinched the deal as the respondent paid there and then the naira equivalent of US$33,643.oo at the agreed rate of N4 to 1US dollar came to N134,572 was paid to the depositor. Although the appellant tried to deny that its officials did not give any information to the respondent concerning the state of the domiciliary accounts of the depositor, the learned trial Judge weighed properly the evidence of both sides and I agree with the learned judge for performing the evidence of the respondent that he was so informed. It must be remembered that there is the evidence which the learned trial judge also accepted that the respondent and Mr. Ehinola on their first visit together to the Lagos Branch of the outcome of their enquiry. It was when they came back the next day that they were given the information concerning the solvency of the account of the depositor. It must also be recalled that the appellant had received Exhibit B, from the depositor wherein he instructed the appellant to issue its draft for US $33,643.00 in favour of the respondent out of the amount standing in dollars in his account. Though the appellant duly complied with that instruction, an attempt was however made at the trial to deny this fact. But the denial by leading evidence to establish it contention that the draft was given to the depositor and not the respondent. This is because the dispatch book which was to be used to prove that the draft was given to the depositor and not the respondent was withdrawn during the trial by the appellant.
I think that the learned trial judge was right to have held that the draft Exhibit 1A was issued by the appellant at the behest of the depositor to the respondent. It is also proper to infer as did the learned trial judge that when the draft was so issued the officials of the appellant who prepared and issued the draft were satisfied not only with the fact that the account of the depositor had enough money to cover the amount on the cheque, but that they had done all that they needed to have done according to the enabling Act to effect the withdrawal of the money by the depositor.
It follows therefore that in order to determine the illegality or otherwise of the transaction between the depositor and the respondent regard must be had to the accepted facts outlined above, and whether there was a breach of any of the provisions of Exchange Control Act; the Foreign Currency (Domiciliary Accounts) Act; and the second Tier Foreign Exchange Market Act. I have already outlined the relevant provisions of these pieces of legislations and the common aspect in all of them is that transactions in any foreign currency must be with an authorised dealer. And in order to achieve this achieve this purpose there are enacted in the legislations the steps that an authorised dealer acting together with the depositor to either effect the withdrawal transfer or dealing with the currency in the market. It is of course not in doubt that before the depositor and the respondent came to the Lagos Branch Office of the appellant they had agreed between themselves that the depositor would sell dollars to the respondent at the 4 naira to 1 dollar. But that agreement was conditional upon the dollars being available in the domiciliary account being held by the depositor in the appellant’s bank. It is evident that it was after the respondent was satisfied that the dollars as represented to the respondent were available as claimed that the respondent paid the naira equivalent of the amount of dollars offered to him by the depositor. It is also manifest that it was after that payment of the Naira equivalent of the sum of US$33,643.00 that the officials of the appellant/bank issued the bank draft for that sum. As I had said above, this transaction can only be declared illegal if it was found to have been effected in breach of the provisions of the Enabling Acts namely, the Exchange Control Act, the Foreign Currency (Domiciliary Accounts Act) Act; the Second Tier Foreign Exchange Market Act. It is not in dispute that by virtue of the provisions of section 1(!) & 1(2) of the Foreign Currency (Domiciliary Account) Act, the appellant and the depositor area authorised dealers permitted to deal, maintain and operate foreign currency through the opening of domiciliary accounts. It is also clear that the appellant through whom the draft was issued has in my humble opinion the duty of ensuring that the provisions for dealing in foreign currency are fully complied with before effect given to the transfer and or withdrawal of such currency. Without the active co-operation of the officials of the appellant, it is my view any arrangement reached between the depositor and the respondent would not have succeeded. It is therefore my view that the transaction between the depositor and the respondent cannot be declared illegal as whatever they agreed upon was with the appellant as an authorised dealer. And if any illegality arose in the transaction, I am afraid that I must hold that it was brought about by the failure of the appellant to ensure that transaction was done properly in accordance with all the enabling legislations relevant to dealing in foreign exchange between it and its customers. The appellant, it must be observed did not as it was its duty so to do, lead any evidence to show that it acted in strict compliance with the provisions of the Foreign Currency (Domiciliary Accounts) Acts and or the second-Tier Foreign Exchange Market Act to show how the account of the depositor was opened and to prove that it complied with the provisions of these legislations with regard to the withdrawal of the foreign currency so deposited and or in connection with the dealings in respect of the said currency. I think by its failure to lead such evidence it may rightly be presumed that the evidence was not called because it would not be favourable to the appellant’s bank. See section 148(d) of the Evidence Act.
Having reached this conclusion the further question as to whether the order that the appellant should be compelled to honour the draft issued in favour of the respondent. The appellant is resisting payment on two grounds namely, the illegality of the transaction, and the knowledge that came after the draft was issued, that on that second ground the appellant is here referred to the information it received that the original cheque deposited by Mr. Ehinola into his account was a forgery, and that for that reason there is no longer any money from which the proceeds of the draft could be paid. On the illegality issue, the legal position is that the appellant cannot be allowed to profit from his own illegality. See Ibrahim v. Osim (1988) 1 NWLR (Pt.82) 257 at 278; Solanke v. Abed & Anor (1962) 1 All NLR 230 at 231; A.P. Limited v. Owodunni (1991) 8 NWLR (Pt.210) 391.
I now turn to consider whether the learned trial Judge was right to have ordered the appellant to pay to the respondent the sum represented on the draft exhibit 1A with interest as claimed. In arguing against that order learned counsel to the appellant says in the appellant’s brief that the order is not justified because the depositor, Mr. Ehinola did not provide the necessary funds to meet the sum on the draft. That the fact that they lacked fund to meet the draft was communicated to the respondent before the draft was dishonoured. It is also argued that Exhibit 1A is illegal and void because it was issued pursuant to an illegal sale and purchase of foreign currency, and no action can therefore be brought to enforce it. Also it is argued that Exhibit 1A being a foreign draft or bill of exchange, the respondent should have protested against its dishonour and as he did not do so, the appellant is discharged from any liability on the draft. I have earlier in this judgment concluded that the transaction leading to the issuances of Exhibit 1A, the draft is not illegal, and nothing turns on that aspect of the case any longer. What remains to be considered is whether the draft ought not to be paid upon the grounds that when it was to be paid in Benin City, the appellant discovered that there was nothing in the depositor’s account to back the draft.
It does seem to me that the position taken by the learned counsel for the appellant and the learned Senior Advocate of Nigeria for the respondent touches upon the relationship between a banker and its customer, and also whether the appellant has incurred a liability to the respondent when the draft Exhibit 1A was issued to him is defendant upon the relationship of banker and customer. The relationship between a banker and its customer has been subject of judicial pronouncement in this court and the Supreme Court. I will therefore refer to two of such cases where the principles underlying the relationship were defined. The first of such cases is the celebrated case of Yesufu v. A.C.B. (1981) 1 S.C. 74 at 92 where Bello, J.S.C. (as he then was) said:-
“Since the celebrated case of Foley v. Hill (1849) 2 H.L. cas.28 the relation(ship) in law between a banker and his customer has been that of debtor and creditor: See also Hirschern v. Evans (Barclays Bank Ltd. Garmishee (1938) 3 All E.R. 491 at page 498. When a Bank credits the current account of its customer with a certain sum the bank becomes a debtor to the customer in that sum, Joachimson v. Swiss Bank Corporation (1921) 3 K.B. 110; and conversely when a bank debits the current account of its customer with a certain sum, the customer becomes a debtor to the bank in that sum: see paget law of banking, 8th Ed. p. 84 whichever party is the creditor is entitled to sue, if demand for payment was not complied with, the other party for money lent: see Joachimson v. Swiss Bank Corporation (supra)”.
See also Balogun v. National Bank of Nigeria Ltd. (1978) 3 SC. 155 where at pp.163 to 164, Idigbe, J.S.C. explained the relationship between a banker and its customer thus:
“The role of predominating business of banks is the business of banking which consists in the main in the receipt of monies on current or deposit accounts and the payment of cheques drawn by, as well as the collection of cheques paid in by, a customer, see also Atkin, LJ, in Joachimson v. Swiss Bank Corporation (1921) 3 K.B. 110 at 127. Therefore, the receipt of money from or on account of his customer by a banker constitutes the latter the debtor of the former Folev v. Hill (1848) 2 H.L. (as 28); and the banker undertakes to pay any part of the money thus due from him to the customer against the written orders of the customers Joachimson v. Swiss Bank Corporation (supra). Accordingly the relationship so constituted is that of principal and agent and therefore, a cheque drawn on the banker by the customer represents the order of the principal to his agent to pay, out of the principal’s money in his hands, the amount stated on the cheque to the payee endorsed on the cheque. Therefore, it has long been established that refusal by a banker to pay a customer’s cheque when he holds in hand an amount, equivalent to that endorsed on the cheque, belonging to the customer amounts to a breach of contract for which the banker is liable in damages”.
It follows, having regard to the principles enunciated above that where as in the instant case that a customer who had deposited a cheque with the appellant/banker and upon the authority of the customer who had deposited money standing in his name with the banker is instructed to pay a certain sum from that account to another person and acting on that authority the banker issued a draft accordingly the payee of the draft or the person to whose favour it was issued is entitled to the proceeds of that draft. In such circumstances as it is clear that when the appellant/bank issued the draft to the respondent as authorised by the depositor its customer, the appellant did so because it was satisfied that the account of the depositor is sufficiently in funds to meet the amount for which the draft was issued. In my view the time when the draft was issued could well be described as the moment of truth for the appellant. It seems to me that the officials of the appellant who issued the draft ought to have been familiar with the effect of issuing a draft in respect of money standing to the credit of its customer. Secondly, it is not in evidence that the procedure for dealing with funds of this kind as laid down in the Enabling Acts was followed before the draft was issued. The appellant cannot be heard to refuse the payment of the draft that was issued to the respondent because of a further development that had nothing to do with him. The appellant is obliged to pay the proceeds of the draft to the respondent and should seek relief against its depositor, Mr. Ehinola. It follows therefore that the appellant was wrong to have refuse to pay the proceeds of the draft to the respondent and I therefore would uphold the expressed views of the lower court that the appellant is obliged to pay the respondent the value of Exhibit 1A.
I now turn to consider the other argument presented by the appellant for refusing to pay the value of Exhibit 1A, the draft which is on premise that by the time the respondent who has now also become its customer at its Benin City branch was to be paid at that branch of the bank, the appellant had got information that the dollar cheque paid by the depositor was forged and for that reason the depositor’s account cannot meet the amount on the draft. Hence the argument is advanced for the appellant that the depositor led the appellant to issue the draft by falsely pretending that he had enough US dollars to meet the amount in dollars issued on Exhibit 1A and thereby caused the appellant to make out the draft for money which the depositor knew he did not have at the time he gave the order. In Watson v. Russel 3 Band S.3,38; 53 and S.968, argument similar to that employed by the appellant in the instant case fell for consideration by the Court of Queen’s Bench (Crompton. Blackbum and Mellor JJ) Crompton J., in delivering the judgment said:-
“If A, by means of a false pretence or a promise or condition which he does not fulfil, precures B to give him a note or cheque of acceptance in favour of C, to whom he pays it, and who receives it Bona fide for value B, remains liable on his acceptance. His acceptance imports value and liability prima facie, and he can only relieve himself from his promise to pay C by showing that C is not holder value or that he received the instrument with notice or not bona fide. The instrument is one which C has a right to take, relying on the acceptance or making of the party, and it is no answer to say that there is no consideration as between him and the acceptor or maker, if the holder took it bona fide for value”.
There is no doubt that in the instant case the respondent took the draft Exhibit 1A for value as the respondent paid the Naira equivalent of the amount of dollars issued in the draft to the depositor, Mr. Ehinola. The respondent is therefore entitled to have the appellant pay to him the sum of US dollars 33,643.00 on the draft Exhibit 1A. The argument that the respondent could not have sued the appellant in foreign currency viz. U.S.dollars and that the learned trial Judge was also wrong to have made the award as claimed will now be considered. With due respect to learned counsel for the appellant, that contention must be rejected as it is now settled that the Nigerian Court like its English counterpart has power, not only to order specific performance of a contract to pay in dollars or deutsche marks or any other currency. See Metronex Nigeria Ltd v. Griffin & George Ltd. (1991) 1 NWLR (Pt.169); Olaogun Int. Ltd v. SJ & M (1992) 4 NWLR (Pt.235) 361 at 386; Schorsch Meior GMBN v. Hemin (1975) All E.R. 152 at 156; Miliangoes v. George Frank Textiles Ltd (1975) 3 All ER 801, (1976) A.C.443; The Halcyon the Great (1975) 1 All E.R.882; Barclays Bank International Ltd v. Levin Brothers (Bradford) Ltd (1976) 3 All E.R. 900.
In all these cases awards were made in foreign currencies that are not local currencies of the countries wherein the action was instituted. The underlying reasons would appear to be that as courts do not make contracts for parties, it is only right and proper that where parties have by their contract agreed to settled their claims in a particular currency or that it is evident that the contract was to be executed or was performed in a particular currency then any claim arising from a breach of that contract ought to be settled in terms of that currency or that in which all the circumstances, the parties must be deemed to have agreed upon to liquidate their claims in relation to the contract. In the case in hand it is not only right but proper to make the award in US dollars as it is evident that the whole transaction was predicated upon the respondent being paid in dollars for which he paid the naira equivalent of the agreed sum. To order otherwise would be unjust as it may lead to the respondent either being paid a sum higher or lower than the sum in dollars which he had purchased having regard to the ever changing value of the naira to the US dollars. The order of the learned trial judge awarding judgment in favour of the respondent in US dollars is therefore upheld by me.
The only outstanding issue that needs to be considered is whether the lower court was right to have awarded interest upon the sum claimed by the respondent from the date the judgment of that court was delivered. It seems to me that the learned trial judge was right to have awarded interest at the rate of 10% per annum from the date of the judgment. See in this regard the case of Ewkunife v. Wayne (W.A.) Ltd. (1989) 5 NWLR (Pt. 122) 422 at 447 448.
In the result this appeal is dismissed in its entirely and the judgment and orders of the lower court are hereby affirmed. For the avoidance of doubt judgment is hereby entered for the respondent in the sum of US dollars 33,643 (thirty-three thousand, six hundred and fourth three dollars) with interest at the rate of 10% per annum with effect from the 25th day of September, 1990, the date of the judgment of the lower court.
The respondent shall have costs in respect of this appeal which I assess at N750.00 only.
Cases referred to in the judgment:
African Petroleum v. Owodunni (1991) 8 NWLR (Pt. 210) 39
Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137
Balogun v. National Bank of Nigeria (1978) 3 S.C. 155.
Ewkunife v. Wayne (1989) 5 NWLR (Pt. 122) 422
Govt. of Gongola State v. Tukur (1989) 4 NWLR (Pt. 117) 592
Ibrahim v. Osim (1988) 1 NWLR (Pt. 82) 257
Ikoku v. Oli (1962) 1 SCNLR 307
Neutronex (Nig.) Ltd. v. Griffin and George (1991) 1 NWLR (Pt. 169)
Olaogun Int. Ltd. v. S.J. & M. (1992) 4 NWLR (Pt. 235) 361
Opeola v. Falade (1991) 2 NWLR (Pt. 173) 303
Solanke v. Abed (1962) 1 All NLR 230
Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566
