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First Bank of Nigeria Plc vs. Excel Plastic Industry Limited

FIRST BANK OF NIGERIA PLC

V

EXCEL PLASTIC INDUSTRY LIMITED

COURT OF APPEAL

( CALABAR DIVISION )

DENNIS ONYEJIFE EDOZIE, JCA ( Presided and Read the Lead Judgment )

SIMEON OSUJI EKPE, JCA

SULE AREMU OLAGUNJU, JCA

CA/C/106/2001

WEDNESDAY, 20TH NOVEMBER, 2002

AGENCY - Agent - When will be personally responsible for breach of contract

AGENCY - Contract made by agent of a disclosed principal - Proper person to sue or be sued in respect of

AGENCY - Liability - Whether can be conferred on both principal and agent

AGENCY - Meaning of

AGENCY - Principle of agency - Instance where not applicable - Whether applicable in the case of a wrongdoer

APPEAL - Award of damages by trial court - When appellate court will interfere therewith

APPEAL - Basis of

APPEAL - Findings of fact by trial court - When appellate court may reevaluate

CONTRACT - Award of damages in contract - Governing principle

CONTRACT - Breach of contract - Action in tort for negligence - Whether can arise therefrom - Onus on plaintiff establishing negligence

CONTRACT - Breach of contract - When agent will be personally liable

COURT - Findings of fact by trial court - When appellate court may reevaluate

COURT - Improperly admitted evidence - Power of trial court and appellate court to expunge

COURT - Relief not claimed - Whether court can grant

COURT - Trial court - Award of damages by trial court - When appellate court will interfere therewith

COURT - Trial court - Post judgment interest - Power of trial court to award whether or not prayed for

DAMAGES - Award of damages by trial court - When appellate court will interfere therewith

DAMAGES - Award of damages in contract - Governing principle

DOCUMENT - Deeds - How construed

EVIDENCE - Admissibility - Section 91(3) Evidence Act - Proper application thereof

EVIDENCE - Documentary evidence - Demeanour of witness - Whether relevant in the consideration of

EVIDENCE - Improperly admitted evidence - Power of trial court and appellate court to expunge

EVIDENCE - Admissibility - Evidence admissible under certain conditions  Where party failed to object to admissibility at the trial court Whether can do so on appeal

EVIDENCE - Onus of proof in civil cases - On whom lies - How discharged

EVIDENCE - Proof - Need for plaintiff to rely on the strength of his own case and not on weakness of the defence

EVIDENCE - Secondary evidence - Entry in a bankers book - Admissibility of secondary evidence of section 97(i)(ii), (2)(e) Evidence Act

INTERPRETATION - Construction of instruments - Guiding principles Need for clauses to be interpreted harmoniously to avoid conflict with their natural meaning

INTERPRETATION - Deeds - How construed

JUDGMENT AND ORDERS - Interest - Post -judgment interest - Power of trial court to award whether or not prayed for

NEGLIGENCE - Action in tort of negligence - Whether can arise from breach of contract - Duty on plaintiff to plead particulars of negligence and lead evidence thereon

PLEADINGS - Negligence - Pleadings in respect of - Plaintiff to plead particulars of negligence and lead evidence thereon

PLEADINGS - Claim for interest - Need to plead specifically - Other facts the pleading should contain

PLEADINGS - Special rate of interest - Need for to be specifically pleaded

PLEADINGS - Statement of claim - Allegation of facts contained therein How defendants must deny

PRACTICE AND PROCEDURE - ‘Traverse’ - What constitutes - Whether all the paragraphs of the statement of claim should be specifically denied

PRACTICE AND PROCEDURE - Admission of fact contained in the statement of claim by the defendant - What amounts to admission Duty on court to consider the totality of the paragraphs of the statement of defence before concluding that particular fact had been admitted

PRACTICE AND PROCEDURE - Appeal court - Power of to evaluate evidence - Extent of

PRACTICE AND PROCEDURE - Award of damages in contract - Rule governing

PRACTICE AND PROCEDURE - Evasive denial - Impropriety of - Duty on defendant who does not admit a particular allegation in a statement of claim

PRACTICE AND PROCEDURE - Pleadings - Claim for interest - Need to plead specifically - Other facts the pleading should contain

PRACTICE AND PROCEDURE - Pleadings - Special rate of interest Need for to be specifically pleaded

PRACTICE AND PROCEDURE - Pleadings - Statement of claim Admission therein - How determined

PRACTICE AND PROCEDURE - Pleadings - Statement of claim Allegation of facts contained therein - How defendant must deny

Issue:

Whether from the pleadings and evidence led by the parties, the appellant admitted receiving foreign exchange in the total sum of DFL 464,270.65  for remittance to the respondent’s foreign partners.

Facts:

The appeal is from the judgment given against the appellant in an action for breach of contract - with multiple reliefs - for refund of the money paid under the contract with interest and general damages for sundry losses suffered by the respondent who was the plaintiff at the trial court.

It was common ground that the contract between the parties was for remittance of foreign currency by the appellant (a commercial bank) to the respondent’s partners in the Netherlands being payment for the goods supplied to her. Because of the foreign currency element, the discharge of the contract involved the authorization of payment of the remittance by the Central Bank of Nigeria which must provide the necessary foreign currency backing, as the only competent authority over the management of foreign currencies in the country. While the plaintiff/respondent contended that the CBN had released funds to the appellant and that the appellant merely refused to disburse the fund to respondent’s customers as instructed, the appellant contended that what she got was mere “foreign exchange cover” and not actual disbursements.

At the end of trial, the trial Judge found for the plaintiff/respondent and judgment was accordingly entered for him in the sum of DFL464,270.65 with interest at the rate of 17.5% from 1982 till judgment and payment of the sum of N60,000,000.00 as general damages. Dissatisfied with the judgment, the appellant appealed.