First Bank Of Nigeria Plc Vs. Alexander Ozokwere (2013)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Holden at Enugu in appeal no.CA/E/182/2001 delivered on the 17th day of May, 2005 in which the court dismissed the appeal of the appellant against the judgment of the High Court of Anambra State, Holden at Onitsha in suit no.O/410/88 delivered on the 26th day of February, 2001 in which the court entered judgment in favour of the respondent, then plaintiff.

In paragraph 17(a) and (b) of the Further Amended Statement of Claim, the plaintiff/respondent claimed against the appellant/defendant as follows: –

“(a) Refund of the sum of US.$186,990.00 or the equivalent in Naira, being money deposited by plaintiff in the defendant bank for remittance to Goodfit Trading Company Limited.

(b) Interest at the current rate of interest per annum on the total sum of US.$186,990.00 or the equivalent in Naira from the 18th February, 1983 till date of judgment in this suit and thereafter at 5% per annum until the whole amount is fully paid”

The judgment of the trial court on the above claims is in the following terms:

“On the whole, the plaintiffs action succeeds, I give judgment in favour of the plaintiff against the defendant for the sum of US$186,990.00. There is no evidence as to the rate of interest claimed. The court cannot act on mere conjecture and is not allowed to speculate as to what the prevailing rate of interest would be. This head of claim fails and it is hereby struck out”.

Appellant/defendant was dissatisfied with the above judgment and consequently appealed against same to the Court of Appeal. The issues raised by appellant for the determination of the appeal are as follows:-

“1. Should the judgment against the appellant be sustained when the appellant was not a pay and/or agent to the contract of the sales or supply of goods moreso, when the said supplier of the goods was not made a party to the action. (Arising from Grounds 1 and 2).

2. Whether it was right for the court below to hold that the appellant was liable to refund the payment made by the respondent

and

If the answer to the above question is in the positive, has the appellant liable to refund the said sum in foreign currency as opposed to local currency (Naira). (Arising from Grounds 3 and 4).

3. Did the trial court, properly evaluate the evidence led in this suit in coming to the judgment it reached against the appellant

(Arising from 5)”,

It is important to note that the lower court resolved the issues against appellant resulting in the instant appeal, the issues for the determination of which have been formulated by learned senior counsel for appellant, A. BEN ANACHEBE, SAN in the appellant brief of argument deemed filed on 28th November, 2007, as follows:-

“1. Whether the Court of Appeal was right to uphold respondent’s claim/allegation of breach of contract of sale/supply (on which his entire case was predicated) despite lack of privity of contract with the appellant and non-joinder of the overseas suppliers against whom the breach was alleged, (Grounds I and II).