First Inland Bank V. Craft 2000 Ltd. & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Akwa Ibom State, sitting at Uyo delivered on 17/6/2010 in Suit No. HU/283/2007. The Respondents as the Plaintiffs before the High Court (hereinafter called the lower court) commenced the action through the Writ of Summons filed with the Statement of Claim on 23/7/2007 for the reliefs endorsed on the Writ of Summons and stated in paragraph 16 of the Statement of Claim as follows:

“Whereof the Plaintiffs claim against the Defendant as follows:

(a) Ten million, one hundred and seven thousand, four hundred and fifteen naira, twenty four kobo (N10,107,415.24) only, in special damages, being money standing to the credit of the plaintiffs in account number 314430280601 opened with the Defendant.

(b) Fifty million naira (50,000,000.00) being general and exemplary damages against the Defendant for breach of contact.”

The Appellant as the Defendant filed a Statement of Defence which was later amended as in the Amended Statement of Defence filed on 10/12/2007. At the trial, the Plaintiffs called one witness and the Defendant too called one witness. After the adoption of written addresses by the learned counsel, the lower court in the judgment delivered on 17/6/2010, granted the Plaintiff’s claim for N10,107,415.24 as special damages and awarded N25,000,000.00 as general and exemplary damages to the Plaintiffs.

The Defendant (hereinafter called the Appellant) felt dissatisfied with the judgment of the lower court and appealed to this court by the Notice of Appeal filed on 23/6/2010 which was later amended. The Amended Notice of Appeal filed with the leave of this court on 28th February, 2011 contains four grounds of appeal from which two issues were formulated for determination in the Appellant’s Brief of Argument settled by Ekpedeme Nelson-Iyoho, learned counsel for Appellants and filed on 30/12/2010 but deemed as properly filed on 28/2/2011.

The two issues in the Appellant’s Brief are as follows:

“1. Whether the order awarding N25m as general and exemplary damages against the Appellant for breach of contract by the trial judge was competent.

2. Whether as shown in evidence there were proper Plaintiffs before the court and if not whether the entire proceedings and judgment of the learned trial judge was competent.

The learned counsel argued on issue 1 that jurisdiction is a threshold issue which any party to a proceeding can raise and even the court itself and that lack of jurisdiction may arise in various ways including, whether a court acted properly in making its orders, or whether relevant formalities, conditions precedent and compliance with the rules of natural justice were present in a court’s proceeding. He cited Momah v. VAB Petroleum Inc. (2000) 2 SC 142. He argued that exemplary damages are not recoverable in an action for breach of contract but in the realm of torts, citing Allied Bank of Nig. Ltd. v. Akubueze (1997) 6 SCNJ 16; Okongwu v. NNPC (1989) 7 SC (pt. 1) 127; Williams vs. Daily Times (1990) I SC 23; Lion Bank Nig. Ltd. v. Amaikom (2008) All FWLR (Pt. 417) 85, He submitted also that exemplary damages must be specifically claimed and proved before it can be awarded relying on Odogwu v. A.G. F & Ors. (1996) All NLR 480.

According to the learned counsel no exemplary damages was proved in the instant case by the Respondents who had already recovered N10,107,415.24 as special damages and the law does not allow for recovery of both special and general damages in breach of contract, citing Gambo v. Ikechukwu (2004) All FWLR (Pt. 202) 178; Artra Industries Nig. Ltd. v. Nig. Bank for Commerce and Industry (1998) 3 SC 98; FBN plc v. Moba Farms All FWLR (Pt. 255) 1120 (sic); Anazodo v. Pazmeck (2008) All FWLR (pt. 432) 1207; Arisongs Trading v. Mil Gov. Ogun State (2009) All FWLR (Pt. 496) 1919.

The learned counsel submitted that the Respondents who had recovered fully under special damages could not recover another N25 million from the same injury under the head of general and exemplary damages for breach of contract, moreso that the general and exemplary damages were lumped together without any justification. He cited Lion Bank of Nig. Ltd. v. Amaikom (supra) at Page 107. He urged court to set aside the award of N25 million general and exemplary damage.

On issue 2, the learned counsel argued that it is important and fundamental that a juristic personality exists in an action and failure to show that the proper parties have been brought to court amounts to putting something on nothing. He argued that the 1st Respondent in this case was allegedly incorporated under the companies and Allied Matters Act, while 2nd Respondent claimed to be Director and chairman of the 1st Respondent but there was no evidence in support of this claim by the Respondents.

The learned counsel submitted that the burden of proving the existence of the 1st Respondent was on the Respondents who failed to lead any evidence at all to that effect especially from the state of the pleadings wherein the Appellant did not admit the legal personality of the 1st Respondent in the pleadings, citing Arisons Trading v. Military Gov. Ogun State (2009) All FWLR (pt. 496) 1819. He submitted with reliance on ACB v. Emostrade Ltd. (2002) FWLR (Pt. 104) 1540 that the only mode of proving the existence of a company has always been through the production of Certificate of Incorporation, and since the 1st Respondent has no prove of existence, the 2nd Respondent who derives title and standing from 1st Respondent is without foundation since the 2nd Respondent admitted that the account belonged to the 1st Respondent. He argued that the claim of the Respondents ought to have failed; citing Registered Trustees of Apostolic v. A.G. Mid Western State (1972) 7 NSCC 247.