Nigeria-arab Bank Limited Vs Barri Engineering Nigeria Ltd. (1995)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C

The appellant was the defendant at the trial High Court. It was sued for damages in negligence by the respondent who claimed that the appellant negligently handled the processing of three letters of credit whereby the respondent suffered substantial loss and damages. After offering of evidence by both parties on their pleadings, and addresses by their respectivecounsel, the learned trial Judge who heard the case up to this stage in the open court adjourned for judgment to 29th August 1991. On that day, he, for no reasons advanced to either party, called the counsel to his chambers and delivered his judgment

there granting all the prayers of the plaintiff, now respondent. The appellant then appealed to the Court of Appeal which upheld the judgment given by the trial Court in Chambers but reduced the claim for general damages from five million Naira (N5,000,000.00) to five hundred thousand Naira(N500,000.00).The Court of Appeal upheld the special damages awarded by the trial court in the sum of N88,074.55 (eighty eight thousand seventy-four Naira and fifty five kobo). The Court of Appeal upheld the judgment of the trial Judge given in chambers by relying on the dictum of Obaseki J.S.C. in Oyeyipo v. Oyinloye (1987) NWLR (Pt.50) 356, 357 believing that it overruled the earlier decision in Oviasu v. Oriasu (1973) 11 S.C. 315 (also reported in (1973) NSCC 502) . The appellant to this court, who lost in the two courts below, filed two grounds of appeal, both on law, with particulars, as follows:

“Grounds of Appeal

1. The Court of Appeal erred in law in holding that the part of the proceedings (the judgment) in the chambers of the Judge was in public when on the admitted deposition before the court there is no evidence that the public was invited thereby contravening Order 36 Rule 14 of the High Court of Lagos Rules and Section 33 of the Constitution of the Federal Republic.
2. That the Court of Appeal erred in law on the issue of the liability when on the letters of credit the liability to pay in foreign exchange arose only on the granting of foreign exchange by the Central Bank on which did not happen in this case.
3. That the Court of Appeal erred in holding that no question of contributory negligence arose in the present case when the respondent was dilatory in complying with the conditions required by the Central Bank of Nigeria and their Overseas supplier failed to meet with the requirement of Chase Manhattan Bank London (appointed by the Central

Bank on the refinancing exercise) and thereby misdirected itself of the issue of damages.

4. That the judgment is against the weight of evidence.”

The respondent also cross-appealed as follows:

“Grounds of Appeal

Ground 1

The Court of Appeal erred in law when it held that the plaintiff’s loss of goodwill and loss of business were not necessary and immediate consequence of the respondent’s negligence act of failing to process the appellant’s application for foreign exchange in time.

Particulars of Error

(a) The Court of Appeal found in concurrence with the trial court’s findings of fact that the respondent is liable for its negligence in failing to diligently process the appellant’s application for foreign exchange.

(b) The appellant had given uncontroverted and unchallenged evidence of the cancellation of its credit facility of 1.5 Million Pounds Sterling by its foreign suppliers.

(c) The appellant had given uncontroverted evidence of its consequential inability to take and perform huge contracts in the then developing city of Abuja.

(d) Whereas the Court of Appeal found as a fact that the appellant’s “………access to supplies which it needed for its business was also no doubt interrupted as regards its suppliers, Oakland”.