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  • City Express Bank Ltd. vs. T & F Services
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  • 2005-07-04
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City Express Bank Ltd. vs. T & F Services

CITY EXPRESS BANK LIMITED

V

TRADE AND FINANCIAL SERVICES

COURT OF APPEAL

( LAGOS DIVISION )

ISA AYO SALAMI JCA (Presided and Read the Lead Judgment)

KUMAI BAYANG AKAAHS JCA

CLARA BATA OGUNBIYI JCA

CA/L/75/2000

THURSDAY, 5TH MAY, 2005

APPEAL - Appellant’s argument on an issue - How to be treated by appellate court

APPEAL - Ground of appeal not attacking finding of lower court Invalidity of

APPEAL - Ground of appeal - Valid ground of appeal - Determinants of

BANKING LAW - Banker’s discretion to combine customer’s accounts -  Exceptions to

BANKING LAW - Banker - Duty of to observe standard expected of a reasonable banker

BANKING LAW - Set off or combination of two or more accounts Banker’s right to

COMPANY LAW - Incorporated company - Legal personality thereof

CONTRACT - Enforcement of contract - Principles guiding

CONTRACT - Privity of contract - Person not a party to a contract suing or being sued thereon - Impropriety of

DOCUMENT - Extrinsic evidence in proof of - Inadmissibility of

EVIDENCE - Document - Extrinsic evidence in proof of - Inadmissibility of

POWER OF ATTORNEY - Agency created thereby - Limitation of

POWER OF ATTORNEY - Terms contained therein - Bindingness of on donee - Impropriety of an extension of

Issue:

Whether respondent’s attorney, Mr. Jean Pierrot Damiani, was empowered by the power of attorney, exhibit D to enter into a contract with the Ministry of Defence and borrow money for that purpose.

Facts:

The respondent (plaintiff before the High Court of Lagos State), a foreign company entered into an agreement with Napex Nigeria Limited for the importation and supply of goods - electric light bulbs, tuna fish and granulated sugar, which agreement is evidenced by exhibits F, F1 and F2 respectively. Upon importation, all sums due were to be paid into respondent’s accounts with the defendant (now appellant) bank. Furthermore, the appellant and respondent entered into an agreement with Carnco Foods Limited for the warehousing of the goods and this was evidenced by exhibit G.

By the agreement therefore, the appellant acted as agent for the respondent by warehousing the goods upon arrival in Nigeria, releasing quantities to Napex Nigeria Limited and receiving payments for goods released, which sums were directly paid into respondent’s accounts with it established primarily for the purpose of the transaction and for which appellant was entitled to and received management fee for acting on behalf of the respondent.

To further facilitate the execution of the contract, respondent gave a power of attorney, exhibit D, to one Mr. Jean Damiani, a Lebanese national, who opened three accounts in respondent’s name with the appellant numbered 1004549, 1003917 and 1004530.

On 31st December, 1991, appellant debited account number 1004530 with the sum of N2,025,716.77 (two million, twenty-five thousand, seven hundred and sixteen naira, seventy-seven kobo only) alleging that it was a set off against account number 1004174 belonging to Tecnicana Nigeria Ltd. The respondent demanded for the reversal of the debit account but appellant maintained that it had the right to so debit the account on the ground that Tecnicana Nigeria Ltd. borrowed money from I. B. Finance Ltd. considered to be appellant’s agent. The appellant maintained this posture because respondent’s attorney, Jean Pierrot Damiani sourced and obtained on behalf of his principal, the loan for Tecnicana Nigeria Ltd. to execute a Ministry of Defence contract.

Disagreeing with this explanation, the respondent sued the appellant. The trial Judge in a reserved and considered judgment found in favour of the respondent. The appellant dissatisfied by this outcome has appealed to the Court of Appeal.