Afribank Nigeria Plc. V. Mr. Chima Akwara (2006) LLJR-SC

Afribank Nigeria Plc. V. Mr. Chima Akwara (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The respondent, as the plaintiff, issued his writ of summons against the appellant (as the defendant) on 11-4-90 at the Aba High Court of Imo State claiming the following:

“(a) An order of this Honourable court directing the defendant to transfer to the plaintiff’s overseas customer as contained in BILL NUMBER BC. 1406/81 namely NEWBY IRON FOUNDERS LIMITED OF WEST MIDLANDS the sum of ‘a317,647.00 (Seventeen Thousand Six Hundred and Forty Seven Pounds Sterling) as contracted between them.

(b) 20% (Twenty per centum) interest on the said sum of 17,647.00 from July 1982 till judgment is delivered.

(c) 4% (Four per centum) interest on the said sum from the date of judgment until completely liquidated.

(d) N4m (Four Million Naira) damages for libel

(e) N6m (Six Million Naira) special and general damages for negligence.

Particulars of special damages

(i) 252,000 pieces of water pipe fittings at N17.00 (Seventeen Naira) loss per pipe fitting: = N4,284,000.00

(ii) 1,400 tonnes of mild steel sections from John Willisma Steel Services Ltd. at N940.00 loss per to tonne = N 1,316,000.00

(iii) Air Tickets/Transportation = N30,000.00

(iv) Hotel Bills/Accommodation = 144,000.00

(v) Telex Messages/Telephone calls = N5,000.00

(iv) Telex Messages/Telephone calls = N5,000.00

General Damages = N221,000.00

Total = N6,000,000.00

Grand total = N10,000,000.00”

The parties filed and exchanged pleadings. The relevant pleadings are the statement of claim filed on 5-9-90 and the amended statement of defence filed on 13-6-91. The suit was tried by Chianakwalam J. In his judgment on 5-7-91, the trial Judge dismissed the plaintiff’s suit. Dissatisfied, the plaintiff brought an appeal against the said judgment before the Court of Appeal, Port Harcourt Division (hereinafter referred to as the court below). The court below in its judgment on 25-5-2000 allowed the appeal. In concluding the judgment, the court below at page 191 of the record said:

“For libel and negligence, I award N4.5million. It must not be forgotten that the parties entered in the transaction since 1982 when 1 dollar was less then 1 Naira.

At that time 17,000.00 pounds was N21,000 .” Now 17,000.00 is worth more than (N2 million).

The respondent will pay the sum of N21,717.48 lodged with it at the instant (sic) rate of 20% until today the judgment day and interest of 4% on the judgment debt till it is completely liquidated. The proof of special damage is scanty. But there is a proof of travels. On Air ticket for overseas travels I find as proved a sum totaling only N5,940.00.”

The defendant before the High Court and respondent before the Court below was dissatisfied with the judgment of the court below. It has brought this appeal before this court. The plaintiff also filed a cross-appeal. In the appellant’s brief filed, the issues for determination were identified as the following:

“1. Who had the burden of proving the state and/or status of the respondent’s account with the appellant and was that burden discharged as required by law

2. In the peculiar circumstances of this case, was the Information ‘NO NAIRA AVAILABLE’ given to the Central Bank by the appellant concerning the respondent’s account wrong, and can the appellant be held liable for changing that position in order to assist the respondent
3. Did the Exchange Risk Indemnity provide a mandatory obligation on the appellant to make up the shortfall and debit the respondent’s account whether or not there was money in the said account
4. From the evidence before the court of first instance did the appellant inform the respondent of the shortfall
5. In the circumstances of the case, were the words ‘NO NAIRA AVAILABLE’ defamatory of the character of the respondent
6. Was there any evidence and was it proper in law for the learned Justices of the Court of Appeal to arrive as they did at the sum of N4.5million as fair damage for libel and negligence
7. Was it right for the lower court to deliver judgment against a non-existent company”

The respondent formulated four alternative issues for determination in the appeal. The issues read:

“(i) Was the Court of Appeal right to have found libel and negligence against the appellant proved and was the award of damages for libel and negligence against the law

(ii) Was the Court of Appeal right to have allowed the appeal against a non-existent legal entity

(iii) Did the Court of Appeal properly evaluate exchange Risk Indemnity

(iv) Was the Court of Appeal right to hold that the appellant prevaricated when it held ‘no Naira’ and later ‘there was Naira’ to the Central Bank of Nigeria. In other words, on whom does the burden of ‘No Naira’ or ‘there is Naira’ rest”

From the cross-appeal, respondent’s counsel formulated one issue for determination thus:

“Whether the Court of Appeal was right to uphold the claim in foreign currency and then make the award in Naira; and if so whether the award in local currency for a claim in foreign currency occasioned a miscarriage of justice.”

The appellant did not file an alternative issue in the cross-appeal. The respondent in his brief raised a preliminary objection as to the competence of the amended notice of appeal upon which the brief was based. The objection reads:

“(1) The respondent will by way of an objection in limine contend that the appellant’s amended grounds of appeal, dated 21st August, 2002 but filed in court on 26/8/02 is consistent with Form 12, Order 8 rule 2 of the Supreme Court Rules. If it is so, the said application is incompetent as the time allowed to appeal consistent with section 27(2) Supreme Court, Act Cap. 424 Laws of the Federation 1990 had expired. The court is urged to strike out the said amended notice of appeal.”

The appellant in its reply brief reacted to the respondent’s preliminary objection in these words:

“On the 25th June, 2003, the Supreme Court ordered that the appellant should file an amended notice of appeal (containing 6 original and II additional grounds of appeal) within 6 weeks from that day. It is trite that time does not run during vacation, and so the six weeks granted the appellant by the Supreme Court starting from 25th of June, 2003 should have expired about the 20th of September, 2003 taking into consideration the fact that time will not fun in August which was the vacation period. The amended notice of appeal filed on the 26/8/2003 is therefore competent and within time. See the 1985 Practice Direction of the CJN dated 24/6/85 and Order 6 rule 5(7) of the Supreme Court Rules. See also the case of Alita Import Export v. Adebayo (2002) 18 NWLR (Pt.799) 554; (2002) 103 LRCN 2397.”

Could the appellant’s counsel be correct in his submission reproduced above I think not. The time within which to appeal to the Supreme Court from a judgment or order of the Court of Appeal is governed entirely by section 27 of the Supreme Court Act which provides:

“27(1) Where a person desires to appeal to the Supreme Court, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by Rules of court within the period prescribed by subsection (2) of this section that is applicable to the case.

(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are-

(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision;

(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.

(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the hearing of the application by the court below, to make an application to the Supreme Court.

(4) The Supreme Court may extend the periods prescribed in subsection (2) of this section.”

It is made abundantly manifest in subsection (1) of section 27 above that the procedure a party wishes to appeal or bring an application for leave shall be in the manner directed by the Rules of court. Otherwise, it is the requirement of Statute in section 27 above that a person appealing shall bring his appeal within the periods prescribed. There is a specific jurisdiction in the Supreme Court under subsection (4) to extend the periods prescribed. The Supreme Court Act above having specifically granted power to the Supreme Court to extend the periods prescribed in subsection (2) has thus taken the matter out of the power of the Chief Justice of Nigeria in the exercise of his authority to make rules of court pursuant to section 236 of the 1999 Constitution. In other words, whereas the procedure for bringing an application for extension of time to appeal shall be in accordance with the rules of court, the power to extend the periods to appeal is directly vested in the Supreme Court. That power clearly derives from Statute. There is therefore no power in the Chief Justice of Nigeria to extend the time to appeal even if he could make rules governing the procedure to be followed. The rules of court could not therefore prescribe an extension of time to appeal.

I must express my surprise here that appellant’s counsel placed reliance on Auto Import Export v. Adebayo (2002) 18 NWLR (Pt.799) 554; (2002) 103 LRCN 2397. It is either that counsel had not read the report before citing it before us or that he meant to mislead the court. I think it is kind to assume it is the former. It is however regrettable that counsel would cite before this court a case that is clearly against the principle being urged us on the pre that the case supports the principle. In that case at pages 578-580; and 2413 – 2415 respectively, this court per Iguh J.S.C observed:

“I think I ought to state that it cannot be over-emphasised that appeals generally are creations of Statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly before the court will deprive such appellate court of jurisdiction to entertain the appeal. See Kudiabor v. Kudanu 6 W.A.C.A. 14. In particular failure to file all appeal within the statutory period of time prescribed by law without obtaining all extension of time within which to appeal in accordance with the provisions of the Rules or to comply with the statutory requirements which are condition precedent to the filing of a valid appeal constitutes a grave irregularity, so fundamental that there would be no appeal which the appellate court could lawfully entertain. Such irregularity call by no means be regarded as mere technicality but constitutes an incurable defect that must deprive the appellate court of jurisdiction to entertain the appeal and whether or not the irregularity was noticed or that no objection was taken to it is not all argument which call legitimately be put forward with any effect when the matter comes before the court. See Oranye v. Jibowu (1950) 13 W.A.C.A 41. So, too, in Ohene Moore v. Akese Tayee 2 WA.C.A. 43 the Judicial Committee of the Privy Council was concerned, not with any extension of time but with failure by the appellant to fulfill certain statutory conditions requisite for the purposes of the appeal. The first appellate court would appear to have dismissed such failure as mere technicality which could be ignored in order that substantial justice might be done but, Lord Atkin, delivering the judgment of the Judicial Committee of the Privy Council at page 45 of the report made it quite plain that such was not the proper view. Said the noble Lord:

‘It is quite true that their lordships, as every other court, attempt to do substantial justice and to avoid technicalities, but their lordships, like any other court are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other court to have jurisdiction.’

The appeal was accordingly allowed and the proceedings and judgment of the then first appellate Supreme Court were declared a nullity. I have gone thus far to emphasise in the clearest terms the very grave and serious consequences that necessarily result from filing an appeal out of time without taking steps to have the time extended in accordance with the Rules of Court or from failure by the appellant to comply with statutory mandatory conditions requisite for the purposes of an appeal.

Learned counsel for the appellant did however attempt to avoid the disastrous consequences that must visit his purported appeal if, in fact, the same was filed out of time. He submitted that the appeal was filed well within the time stipulated by law, that the common practice in the Supreme Court is that during annual vacation, time does not run and that if the period of vacation of either the Court of Appeal or the Supreme Court is subtracted from the period between the 1st July, 1996 when the judgment was delivered and the 4th October, 1996 when the notice of appeal was filed, it would be seen that the said notice of appeal was filed well within time.

It would seem to me that the Practice Direction learned counsel for the appellant appears to be alluding to is that issued by the Honourable Chief Justice of Nigeria which took effect from the 24th day of June 1985. It went inter alia as follows:

‘In giving effect to the provisions of Order 6 rule 5 of the Supreme Court Rules, 1985 the period of the vacation which is declared between July and September each year shall not be taken into account for the computation of the period of filing briefs by either the appellant or the respondent in an appeal before the court.’

The above Practice Direction which was rightly issued pursuant to the provisions of Order 10 rule 2 of the Supreme Court Rules has since been regarded as part of those Rules. However, that Practice Direction merely pertains to the computation of the period of filing briefs by either parties to all appeal and does not concern the statutory period of time with ill which to appeal from a decision of the Court of Appeal as expressly provided for under section 27(2) of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1990.

At all events, I need, perhaps to stress that neither Practice Directions nor, indeed, Rules of Court can override Statutory Provisions. Section 27(2)(a) of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1990 which makes provision in respect of the periods of time within which to appeal has neither stipulated nor suggested that the times therein prescribed shall cease to run during periods of vacation and I do not conceive it the duty of this court to usurp the legislative powers of the National Assembly under whatever guise by amending laws enacted by them other than to interpret them in accordance with the laws of the land.”

It is undisputed that this court on 25th June 2003 granted the appellant six weeks to file an amended notice of appeal. The effect of applying for and obtaining an order to amend an existing notice of appeal is to vacate the notice of appeal and render it non-existent. In any case, the appellant having prepared the appellant’s brief before us on the amended notice of appeal has himself eloquently conveyed that he was discarding the notice of appeal previously filed. The six weeks given by this court on 25/6/03 to the appellant to file its amended notice of appeal expired on 6-8-2003. The appellant however did not file the amended notice of appeal until 26-8-03. Neither did it seek a further extension of time. Clearly therefore, the late filing of the amended notice of appeal was unauthorised and a clear infraction of section 27(4) of the Supreme Court Act. In simple language appellant’s amended notice of appeal was filed out of time. In ldiang v. State (1981) 6 – 7 S.C. 95 at 96, this court per Bello, J.S.C (as he then was) observed:

“The appellant was convicted of murder and sentenced to death on 18th May, 1976, in the High Court, sitting at Uyo. His appeal to the Federal Court of Appeal was struck out on 15th January 1979. His purported appeal to this court was dated 21st August, 1979. By reasons of section 31(2)(b) of the Supreme Court Act, the purported appeal is incompetent in that the appellant did not appeal within 30 days from the date of the decision of the Court of Appeal. The purported appeal shall accordingly be struck out.”

See also Kiren v. Pascal and Ludwig INC (1978) 11& 12 SC. 77.

The consequence of the failure of the appellant to file its amended notice of appeal within six weeks as ordered by this court on 25-6-03 is that there is no competent appeal before this court. The purported appeal is incompetent. It must be and is accordingly struck out.

I now consider the cross-appeal from which the respondent/cross-appellant distilled one issue. That issue raises the question whether or not the court below was right not to have awarded the amount claimed by the respondent/cross-appellant as special damages in the foreign currency involved in the transaction. In responding to this issue, it is necessary to consider the facts as pleaded by the plaintiff/cross-appellant. In paragraph 3 to 10B of his statement of claim, the plaintiff/cross-appellant pleaded thus:

“3. The plaintiff transacts business with his overseas customers through the defendant Bank.

4. The plaintiff about September 1981, negotiated with his overseas customer namely NEWBY IRON FOUNDERS LTD. OF WEST MIDLANDS ENGLAND FOR THE SUPPLY to him of water pipe fittings.
5. The said Newby Iron Founders Ltd. granted credit facilities to the plaintiff and allowed him time after the sales, to remit to him the value of the goods supplied. The remittance must be done through bankers nominated by the plaintiff and accepted by the said Newby Iron Founders Ltd. according to their agreement.
6. The plaintiff following this agreement nominated the defendant Bank and this was accepted by the Newby Iron Founders Ltd.
7. Sometimes in December 1981, the said Newby Iron Founders Ltd. shipped to the plaintiff, quantities of water pipe fittings in line with the agreement pleaded in paragraph 5 above valued at 17,647.00 (Seventeen thousand, six hundred and forty seven pounds sterling).
8. About the 23rd day of July 1982, the plaintiff paid for the said supply in local currency (namely in Naira) the equivalent of the said 17,647.00 (Seventeen thousand, six hundred and forty seven pounds sterling) at the ruling exchange rate at that time.
9. The defendant on the 5th day of August 1982, applied on the plaintiff’s behalf to the Central Bank of Nigeria for foreign exchange allocation for the transfer of the Bill settled through them on 23rd day of July 1982, and pleaded in paragraph 8 above.
10. By a letter reference No. BILLS/OE/735/83 of 23rd day of August 1983, written on behalf of the defendant Bank, copy of which was sent to Newby Iron Founders Ltd. the defendant acknowledged the averments in paragraphs 8, 8b, and 9 of this statement of claim. Copy of the said letter is hereby pleaded and will be founded upon. Notice is hereby given to the defendant to produce the original at the hearing of this suit.

10(b) The defendant again by their letter dated 17th day of February 1983 Ref. No. BILLS/JKO/EAO/144/63 confirmed this application for transfer of the sums of 17,647.00 pounds. The said letter is hereby pleaded and will be relied upon at the hearing of this suit. Notice is hereby given to the defendant to produce the original at the hearing of this suit.”

The case which the plaintiff/cross-appellant made in the trial court was that he paid the equivalent of 17,647.00 in local currency to the defendant/appellant. The sum was to be transmitted to the plaintiff/cross-ppellant’s overseas supplies for goods already supplied to the plaintiff/cross-appellant. It was pleaded that the defendant/appellant negligently failed to transmit the money to the overseas suppliers. The transaction was done in 1982. At that time the equivalent of 17,647.00 in local currency was only N21,717.48. This was the amount the plaintiff/cross-appellant paid to the defendant/appellant. The court below upheld plaintiff/cross-appellant’s entitlement to full compensation for the amount he paid to the defendant/appellant. At page 191 of the record, the court below in its judgment said:

“It must not easily be forgotten that the parties entered in the transaction in 1982 when one dollar was less than 1 Naira. At that time 17,000.00 pounds was 21,000.00 Naira… Now 17,000.00 pounds is worth more than N2 million.

The respondent will pay the sum of N21,717.48 lodged with it at the instant rate of 20% until today the judgment day and interest of 4% on the judgment debt till it incompletely liquidated.” (Italics mine)

It seems to me that the award of N21,717.48 to the plaintiff/cross-appellant in the circumstances of this case is grossly unfair. If the case of the plaintiff/cross-appellant was that the defendant/cross-apellant negligently failed to pay 17,647.00 to the plaintiff/cross-appellant’s overseas supplier and there was evidence that the debt remained unpaid, it ought to have occurred to the court below that in order to restore the plaintiff/cross-appellant to its pre-transaction position that judgment for the N17,647.00 ought to have been given in foreign currency. This was the only conclusion, which would enable the plaintiff/cross-appellant have enough money to pay to the overseas suppliers. This, the defendant/appellant ought to have done in 1982.

The plaintiff/cross-appellant claimed 20% interest per annum on the amount claimed and the court below awarded interest at the rate claimed. In paragraph 34 of the statement of claim, the plaintiff pleaded:

“The plaintiff shall lead evidence to show that he is entitled to all the interest accruing on this deposit since 1982 the deposit was made.”

The plaintiff in his evidence-in-chief at page 38 of the record testified thus:

“The defendant still withholds the amount. I want the court to direct the defendant to transfer to my customers Newby Iron Founders Ltd., the sum of N17,643,00. The defendant should pay 20% interest of the amount to me they have been using the money from 1982 until judgment is given.”

Under cross-examination at page 42 of the record of proceedings, the plaintiff said:

“There was no agreement the defendant would pay 20% interest. ”

It is apparent that the plaintiff/cross-appellant did not call satisfactory evidence in support of his claim for 20% interest as awarded by the court below. There was no evidence that the plaintiff/cross-appellant’s overseas suppliers had charged against him interest at 20% for his failure to pay promptly.

The defendant/appellant whose appeal I have struck out earlier has for that reason been unable to contend that the 20% interest awarded by the court below was unjustified. In the light of my decision to award to the plaintiff/cross-appellant the claim for 17,647.00 in the currency claimed, it seems to me unjust to sustain interest on the said sum at 20%. I believe that the court below was swayed to award as high an interest as 20% because it did not consider awarding the claim in foreign currency.

In Saeby Jenzstoberi MF NS v. Olaogun Enterprises (1999) 14 NWLR (Pt. 637) 128 at 146, this court recognised the jurisdiction of the Court of Appeal to give judgment in foreign currency if the facts so justified. See also Koya v. U.B.A. Ltd. (1997) 1 NWLR (Pt. 481) 251 at 289; Miliangos v. George Frank (iles) Ltd. (1975) 3 All E.R. 801 (HL); Barclays Bank International Ltd. v. Levin Brothers (Bradford) Ltd. (1976) 3 All E.R 9qO and the Despina R. (1979) 1 All E.R. 421.

The cross-appeal accordingly succeeds. The judgment of the court below only in so far as it concerns the award of N21,717.48 being amount deposited with the defendant/appellant to purchase 17,647.00 asset is set aside. In its place, I award to the plaintiff/respondent/cross-appellant the sum of 17,647.00 (Seventeen thousand, six hundred and forty seven pounds). The said amount shall attract interest at the rate of 4% per annum from the date of the judgment of the court below (i.e 25-5-2000) until the amount is completely liquidated. There will be costs in favour of the plaintiff/respondent/cross-appellant against the defendant/appellant assessed and fixed at N10,000.00.

SC.186/2001