Hein Nebelung Isensee K.g. V. United Bank For Africa Plc (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (delivering the Leading Judgment)

This is an appeal by the Plaintiff (Appellant herein) against the decision of Honourable Justice Ade-Alabi of the High Court of Lagos State, sitting at Lagos in Suit No. LD/2524/91, delivered on the 28th of May 1999 whereby the learned trial Judge dismissed the Plaintiff’s claim in its entirety (Pages 78-93 of the Record of Appeal.)

By Writ of Summons dated and filed on the 4th of November 1991, and in Paragraph 13 of the Statement of Claim filed on the 4th of November 1991 the Plaintiff (Appellant herein) claimed against the Defendant (Respondent herein) thus:

(a) The sum of DM77.078.02 being outstanding interest on delayed payment due to the Plaintiff and;

(b) N150,000.00 (One Hundred and Fifty Thousand Naira) as costs/damages.

The salient facts giving rise to the above claim, according to the Appellant is as pleaded in his Statement of Claim dated 22nd August 1991 and filed on the 4th of November 1991.

Herein is a synopsis of the facts.

The Plaintiff who is a company incorporated in Germany where it carries on the business of Technical supplies, Consultants and Exportation of Industrial Raw Materials, its accessories and other goods, brought this action in the lower court by its lawful attorney Solms Nebelung (Nigeria) Limited.

The Defendant is a company incorporated in Nigeria, with its Head Office at Breadfruit Home, 11/12 Davies Street, Lagos, and it carries on the business of Banking all over Nigeria.

Sometime in 1983, the Appellant exported goods to a Nigerian Importer, Multi Aluminium Manufacturing Company Limited, or the basis of three Unconfirmed Letters of Credit opened by the Respondent in favour of the Appellant, for a total sum of DM193,512.58 in settlement of which the importer deposited the Naira equivalent with the Defendant.

The letters of Credit were duly processed by the Respondent through the Central Bank of Nigeria, which approved same, and released the fund for remittance to the Appellant under Batch No. 17/4181of 23rd March 1983.

The Central Bank released the foreign exchange in settlement of the said three Unconfirmed Letters of Credit in March 1983.

The Respondent however, did not remit the money to the Appellant.

Indeed it delayed the remittance of this money, and utilized same for its own purpose and for its own profit.