Francis Shanu & Anor V. Afribank Nigeria Plc (2002)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

This is an appeal from a judgment of the Court of Appeal, Benin Division, given on 11 July, 1997 [Coram: Akintan and Nsofor JJCA, Akpabio J.C.A. dissenting] which allowed the appeal against the decision of G. E. Edokpayi, J., sitting at the High Court, Benin.

The plaintiffs, now appellants, alleged as per their amended statement of claim to have imported into Nigeria, the sum of US$25,000,000 in 100 dollar bills making 250,000 such bills, on a tanker vessel called MV Botony Trinity which berthed at Warri port on or about 29 June, 1983. They said the money was eventually paid into the respondent bank [Afribank Nigeria Plc. Warri branch] upon an agreement with the bank to pay the plaintiffs the naira equivalent of N2 per dollar, making a total of N50,000,000.00. This was on 22 July, 1983 whereof, as alleged, the plaintiffs opened a current account into which the sum of N40,000,000.00 was credited in exchange for US$20 million. The balance of N10,000,000.00 was to be credited later “due to insufficient funds” at the time. The said balance was later said to have been credited. It turned out that the defendants denied any knowledge of the lodgement of 25 million dollars with them. The plaintiffs consequently sued them by writ of summons filed on 11 March, 1993 at the High Court, Benin jointly and severally for:

(1) N50,000,000.00

(2) Interest at commercial bank rate of 30% per annum from 22 July, 1983 on the sum of N50,000,000.00 until judgment is delivered.

(3) Loss in the value of the naira by 100% which is equal to N500,000,000.00.

The defendants [i.e. the present respondent/cross appellant and one Segun Ajayi as 2nd defendant] in their statements of defence denied there was ever any such transaction. They averred that no vessel known as MV Botony Trinity berthed at Warri port as alleged, or that if it did, that it brought such or any amount of US dollars. They said further that any documents to that effect would be forgeries.

Evidence was led by both sides before Obi, J., who presided over the proceedings at the High Court, Benin. The 1st plaintiff testified and called five witnesses while the 2nd defendant testified and the 1st defendant called nine witnesses. Several documents were admitted in evidence. The case had reached address stage when Obi, J., relocated to Delta State after it was created from the erstwhile Bendel State. From the evidence led before Obi, J., the following questions, among other matters, had created some agitation of the mind, which he as the trial Judge would have had to resolve in his primary duty, having seen and heard the witnesses testify. The first question is, did MV Botony Trinity berth at Warri port The plaintiffs claimed that the money came through the said vessel. An assistant comptroller of customs, Michael Arubasa, who gave evidence as D.W. 5, after testifying that tanker vessels do not carry any consignment other than oil and that foreign currency could not be regarded as merchandise, said:

“We have since gone through our document and there is no record of customs dealing with Botony Trinity in 1983. We checked through our arrivals and sailing register for 1983 and we could find nothing about Botony Trinity.”

He then tendered a huge register for that purpose which was admitted as exhibit 12, and continued:

“From records available Botony Trinity never came to Warri port on the date in question. Exhibit 12 is conclusive that Botony Trinity never came to Warri port.”

This is a vital evidence coming from this witness, backed by documentary evidence. Similarly, Bassey Effiong Erne, a transport officer in the Nigerian Ports Authority, Warri (D.w. 6) said:

“I was in Warri in June to August 1983, but not as traffic officer. I am on subpoena to give evidence in this case. Our record shows that Botony Trinity was not in our port between June to August 1983.”

The second question is, was there in fact US$25 million dollars cargo or consignment imported and brought to the defendant bank Christopher Obeto, a senior manager, Central Bank of Nigeria (D.W. 3) said: