All States Trust Bank Limited V. King Davidson Enterprises (Nigeria) Limited (2000)

LawGlobal-Hub Lead Judgment Report

IBIYEYE, J.C.A. 

This is an appeal against the judgment of Onajite Kuejubola, J., of the High Court of Justice Warri delivered on the 21st day of April, 1999, in suit No.W/166/95.

The plaintiff commenced action against the defendant and claimed as follows in paragraph 24 of the Amended Statement of Claim:

“1. The sum of N50,000,000.00 (fifty million Naira only) being special and general damages for the breach of the said contract.

Or in the alternative to relief above an account of the monies accruing from the said contract from the date of collection of the goods till judgment and payment over to plaintiff by the defendant of all monies due to the plaintiff thereof.

2. A declaration that the plaintiff is not indebted to the defendant under and or by virtue of the said contract/agreement.”

The defendant in strict compliance with the rules of the trial court filed and exchanged a statement of defence with counter-claim. It equally amended its pleading as the plaintiff did. The defendant joined issues with the plaintiff and in its counter-claim prayed for the sum of N8,171,907.27 (eight million, one hundred and seventy one thousand, nine hundred and seven Naira twenty-seven kobo) being the total of the plaintiff’s indebtedness to it together with interest at 20% until judgment and thereafter interest at 10% until the judgment debt is liquidated.

The case proceeded to hearing wherein the plaintiff called three witnesses and two witnesses testified on behalf of the defendant. The items of evidence on behalf of the plaintiffs were essentially that the plaintiff and the defendant entered into a contract whereby the defendant which is a commercial bank agreed to source the funds with which the plaintiff which is a business organisation would execute the supply of computer accessories and consumables to Shell Petroleum Development Company, Warri. It is also in evidence that the defendant delayed the remittance of the necessary funds to an unnamed place in the United States of America where the purchases were made. The consequence of the said delay was that, those goods arrived late in Nigeria and in particular Warri where the Shell Petroleum Development Company at whose instance they were purchased rejected them. The plaintiff particularised its losses in certain amounts and generally prayed the trial court to award it special and general damages of N50,000,000.00.

The defendant on its part denied the circumstances alleged to have caused the delay and eventual rejection of the goods in question by the beneficiary. It instead counter-claimed in the sum of N8, 171,907.27 being the plaintiff’s indebtedness to it, but it (the plaintiff) denied any indebtedness.

At the conclusion of evidence the parties’ learned counsel addressed the court. The learned trial Judge thereafter delivered a considered judgment wherein she upheld the claim and awarded the plaintiff the sum of N16,879,758.00 as damages as well as a declaration that the plaintiff was not indebted to the defendant and accordingly dismissed its counter-claim.

The defendant (now appellant) was not satisfied with that judgment and it appealed to this court on five grounds. Briefs of argument were filed and exchanged in compliance with the rules of this court. The appellant identified the following five issues from the five grounds of appeal:-

“(i) Whether the learned trial Judge was right to have held that time was of the essence in the contract between the appellant and the respondent from facts extraneous to Exhibit E which is the contract between the appellant and the respondent.

(ii) Whether from the totality of evidence led (both documentary and oral) at the trial the appellant was in breach of the contract she entered into with the respondent.

(iii) Whether failure of a party to call a particular witness(es) makes his/her case liable to dismissal.