Savannah Bank of Nigeria Ltd. V. Starite Industries Overseas Corporation & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal by the 3rd defendant against the judgment of Ilori J. in suit No.ID/1764/88 sitting at the Ikeja High Court on 28/1/93. The plaintiff also now Cross-appellant supplied to the 1st defendant/respondent several goods made up of water pumps, swimming pool equipment and related products; worth $172,921.85 of the equivalent of N864,609 being the amount due and claimed by the plaintiff with 12% interest per annum from 1st August, 1983 until the total sum is paid.

The plaintiff called and relied on evidence of only one witness. The defendants called no witness and evidence at the trial but after cross-examining the witness for the plaintiff, rested their case on plaintiff’s case and made submissions on point of law.

The learned trial Judge gave judgment for the plaintiff in the sum of N1,729,281.05 with interest at 12% per annum until the date of judgment and thereafter at 6% per annum until the money is paid.

However, even though the Judge found that the 1st defendant received the goods and that both 1st and 2nd defendants acknowledged that $172,921.85 was due, he nevertheless refused to give judgment against them as per the plaintiff’s claim. He also refused to enter judgment in dollars being the money payment of which the 1st, 2nd and 3rd defendants should provide enough local currency.

The Appellant dissatisfied with this judgment has, by a notice of appeal dated 19/2/93 filed one ground and another omnibus ground of appeal in this matter. It has also by permission and order of this court, been allowed to file and argue 3 additional grounds of appeal.

The grounds of appeal are not reproduced. However, the learned Counsel for the Appellant has formulated the following 5 issues for determination as arising from the grounds of appeal filed:

(i) Whether in view of the evidence before the learned Judge the plaintiff/respondent made out a case of negligence of duty against the defendant/appellant?.

(ii) Whether the learned trial Judge correctly directed himself as to the possibility of maintaining an action in tort against the 3rd defendant/Appellant once he accepts that the action in contract could not be maintained, on the same facts and evidence when the plaintiffs claim was in contract?.

(iii) Whether the plaintiff/respondents proved their case and were entitled to judgment?.

(iv) Whether the judgment of the learned trial Judge was not entered in disregard of the provisions of s. 258(i) (as amended) of the Constitution of the Federal Republic of Nigeria, 1979, in that the judgment was given well after the 3 months stipulated by the Constitution from the conclusion of final addresses?.

(v) Whether there was a proper basis for finding that a fiduciary relationship existed between the plaintiff/respondent and the 3rd defendant/appellant?.

However, the plaintiff/cross-appellant adopts issues I, II, III, and V. They however, disagree with issue IV as formulated. Rather the cross-appellant formulated the issue as follows:

“Is the judgment of Hon. Justice S. O. Ilori, given on 28/1/93 after the close of proceedings and addresses by counsel on 1/12/92 covered by section 258(-1) of the 1979 Constitution and S.4 of the Constitution (suspension and modification) Decree No.17 of 1985 and was there a miscarriage of justice as a result of the delay?” On the other hand, the 3 grounds of cross-appeal filed by the cross-appellants are reproduced without the particulars thus: