African Continental Bank Plc & Anor V. Victor Ndoma-egba(2000)

LawGlobal-Hub Lead Judgment Report

OPENE, J.C.A. 

In

the High court of Cross River State holden at Calabar, the respondent as plaintiff brought an action against the appellants as defendants jointly and severally claiming the sum of N5,000,000.00 as special and general damages for breach of contract “for that defendants who are the plaintiff’s bankers have refused to furnish the plaintiff at his request and expense statements of account held as a customer of the defendants whereof the plaintiff has suffered damage in his profession.”

Pleadings were duly filed and exchanged and the matter went into a full trial at the end of which the learned trial Judge Binang, J. in a reserved judgment delivered on 30th July, 1997 entered judgment in favour of the plaintiff/respondent against the defendants jointly and severally in the sum of N3,300,000.00 (Three Million, Three Hundred Thousand Naira) being special and general damages for breach of contract.

Aggrieved and dissatisfied with this judgment the appellants have now appealed to this court.

Both the appellants and the respondent through their counsel filed and exchanged briefs of argument.

In the appellants’ brief of argument, 4 Issues were distilled from the eleven grounds of appeal filed by the appellants, they are:-

“(i) Whether the judgment against the second defendant in the circumstances of this case is sustainable.

(ii) Whether an award of special and general damages for breach of contract is sustainable when the plaintiff did not give any particulars of special damages claimed and when there are judicial dicta of both the Court of Appeal and Supreme Court that a claim for general damages for breach of contract is inappropriate.

(iii) Whether the plaintiff proved any loss to warrant an award of N3.3million in his favour as special and general damages for breach of contract.

(iv) Whether an award of N25,000.00 to the plaintiff as costs is warranted or defensible in the circumstances of this case.”

The respondent did not formulate any issue in his brief of argument but rather adopted the 4 issues identified in the appellants’ brief for determination of this appeal.

In respect of issue No.1, Chief Udechukwu SAN, the learned counsel for the appellants has argued that the action commenced by the respondent is an action by a current account customer against his bank, the 1st defendant claiming damages for loss allegedly accruing from a breach of contract in the form of alleged failure by the 1st defendant to supply statements of account to the plaintiff at his request and expense and that the proper parties to this action are the plaintiff and his banker, the 1st defendant and no other person. He argued that the 2nd defendant is not a banker and that there is no privity of contract of banker/customer between the 2nd defendant and the plaintiff and that the 2nd defendant is merely an agent and an employee of the 1st defendant branch at Calabar at the material time and as an agent of a known principal that the 2nd defendant cannot be and should not have been sued on the contract in question.

He referred to Niger Progress Ltd. v. North-East Line Corporation (1989) 3 NWLR (pt.I07) 68 at 84.