First Bank Of Nigeria Plc. V. J.o. Imasuen And Sons Nigeria Ltd. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment)

This appeal is against the judgment delivered on 27/10/2003 by the Federal High Court, Benin Judicial Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice N.I. Auta (now Chief Judge) (hereafter simply referred to as “the then learned trial Judge”). The lower court entered judgment in favour of the Respondent which was the Plaintiff before it.

The case was contested by the parties upon their respective pleadings. The last of the Respondent’s pleading was its Further Amended Statement of Claim while the last of the Appellant’s pleading was equally its Further Amended Statement of Defence.

The Respondent in its pleading disclosed that it had an agreement with Messrs. Tropenhelz Agentur for the supply of furniture components (specification and quantity duly set out) to the value of USD 15,000. That a confirmed and irrevocable Letter of Credit (hereafter simply referred to as “L/C”) dated 22/12/88 was opened by Badische Kommunale Landesbank Karisruhe also known as Suedwest Beutsche Landesbank Karleseuhe to International Bank for West Africa Ltd (hereafter simply referred to as “IBWA”) negotiable by the Appellant.

The Respondent claimed that the L/C was amended by telex message dated 2/2/89 in which the expiry date of the L/C was extended from 30/1/89 to 15/3/89. (Bold and Underline supplied by me for emphasis).

One of the conditions of the L/C as disclosed by the Respondent is that “the presentation of the shipping documents must be within 21 days after Bill of Lading date but within the validity of the credit”. The Respondent claimed to have made a partial shipment of the furniture components to the value of USD 8,606, on board a specified vessel as per Bill of Lading No. BDN 1829 dated 5/4/89 pursuant to the L/C as amended.

The Respondent further claimed to have made all the relevant shipping documents available to the Appellant on 25/4/89 but that the Appellant failed to pay the contractual price for shipment in the sum of $8,606 or its Naira equivalent, despite the fact that the relevant shipping documents complied with the terms and conditions of the L/C. It is also the case of the Respondent that as a result of the non-payment by the Appellant for the partial shipment of furniture components that it made, it was unable to obtain liquid funds to enable it finance the shipment of the remaining furniture components to the value of $6,393.17, even though it (Respondent) was ready and willing to do so.

The Respondent also stated that on 1/2/89, it received a telex message from one Alfred Platte, an agent of the importer company that the expiry date of the L/C had been extended for 6 weeks and confirmed. Bold and Underline supplied by me for emphasis).

The Respondent pleaded its reliance on relevant documents to show that the Appellant exhibited gross negligence (the particulars of which were set out) in handling its part of the transaction particularly the non-payment of the sum of $8,606 or its Naira equivalent when the shipping documents were presented. In the premises of the averments in its pleading, the Respondent claimed the following reliefs against the Appellant –

“(a) (i) value of the shipped 22.95 cubic metres furniture components black afara USD 8,606 or its naira equivalent

(ii) value of the unshipped 17.05 cubic metres furniture components black afara USD 6,393.75 or its naira equivalent.

(iii) N20,000,000.00 being general damages for breach of contract in that the Defendant failed to pay the value of the furniture components shipped when all the relevant shipping documents were presented, and also for loss of international business by the embargo placed on the Plaintiffs business by the Central bank of Nigeria.

(b) Alternatively, the Plaintiff claims from the Defendant the sum of N20,300.000.00 being general damages for negligence on the part of the Defendant and/or its agent Badische Kommunale Landesbank Karisruhe in that the Defendant failed to take necessary steps to get the export proceeds paid and/or repatriated.”

In its own pleading the Appellant controverted the case of the Respondent as set up in the said Respondent’s pleading. Save for admitting the fact of the L/C No. K. 12/373 in favour of the Respondent and the information or facts contained therein, the Appellant denied being a party to any agreement as pleaded by the Respondent in its pleading and that it had no knowledge of the same. The Appellant claimed that by the L/C the shipment date was not to be later than 15/1/89 while the expiry date was 30/1/89. The Appellant averred that any amendment to the L/C or shipment date or expiry date was unauthorized and invalid as no such alleged amendment was ever communicated to it by the issuing bank in Germany or by it (Appellant) to the Respondent. While the Appellant admitted that the Respondent procured a bill of lading dated 5/4/89 and that it presented shipping documents to it, the Appellant not only alleged that the shipment was late but that the shipping documents presented by the Respondent to it were not in conformity with the L/C and set out details in that regard.