Savannah Bank of Nigeria Ltd. V. Starite Industries Overseas Corporation & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This is an appeal by the 3rd defendant against the judgment of Ilori J. in suit No.ID/1764/88 sitting at the Ikeja High Court on 28/1/93. The plaintiff also now Cross-appellant supplied to the 1st defendant/respondent several goods made up of water pumps, swimming pool equipment and related products; worth $172,921.85 of the equivalent of N864,609 being the amount due and claimed by the plaintiff with 12% interest per annum from 1st August, 1983 until the total sum is paid.

The plaintiff called and relied on evidence of only one witness. The defendants called no witness and evidence at the trial but after cross-examining the witness for the plaintiff, rested their case on plaintiff’s case and made submissions on point of law.

The learned trial Judge gave judgment for the plaintiff in the sum of N1,729,281.05 with interest at 12% per annum until the date of judgment and thereafter at 6% per annum until the money is paid.

However, even though the Judge found that the 1st defendant received the goods and that both 1st and 2nd defendants acknowledged that $172,921.85 was due, he nevertheless refused to give judgment against them as per the plaintiff’s claim. He also refused to enter judgment in dollars being the money payment of which the 1st, 2nd and 3rd defendants should provide enough local currency.

The Appellant dissatisfied with this judgment has, by a notice of appeal dated 19/2/93 filed one ground and another omnibus ground of appeal in this matter. It has also by permission and order of this court, been allowed to file and argue 3 additional grounds of appeal.

The grounds of appeal are not reproduced. However, the learned Counsel for the Appellant has formulated the following 5 issues for determination as arising from the grounds of appeal filed:

(i) Whether in view of the evidence before the learned Judge the plaintiff/respondent made out a case of negligence of duty against the defendant/appellant?.

(ii) Whether the learned trial Judge correctly directed himself as to the possibility of maintaining an action in tort against the 3rd defendant/Appellant once he accepts that the action in contract could not be maintained, on the same facts and evidence when the plaintiffs claim was in contract?.

(iii) Whether the plaintiff/respondents proved their case and were entitled to judgment?.

(iv) Whether the judgment of the learned trial Judge was not entered in disregard of the provisions of s. 258(i) (as amended) of the Constitution of the Federal Republic of Nigeria, 1979, in that the judgment was given well after the 3 months stipulated by the Constitution from the conclusion of final addresses?.

(v) Whether there was a proper basis for finding that a fiduciary relationship existed between the plaintiff/respondent and the 3rd defendant/appellant?.

However, the plaintiff/cross-appellant adopts issues I, II, III, and V. They however, disagree with issue IV as formulated. Rather the cross-appellant formulated the issue as follows:

“Is the judgment of Hon. Justice S. O. Ilori, given on 28/1/93 after the close of proceedings and addresses by counsel on 1/12/92 covered by section 258(-1) of the 1979 Constitution and S.4 of the Constitution (suspension and modification) Decree No.17 of 1985 and was there a miscarriage of justice as a result of the delay?” On the other hand, the 3 grounds of cross-appeal filed by the cross-appellants are reproduced without the particulars thus:

“1. The learned trial Judge erred in law and misdirected himself when after having found that the defendant/appellant Savannah Bank of Nigeria Limited was liable failed to award a sum of $172,431.85 with interest at 12% from August 1993. In accordance with the principles laid down in Milingos v. George Frank Testiles Limited (1985) 3 All E.R.

2. The learned trial Judge having found that 2nd and 3rd Respondents received the goods for which they promised to pay, executed the promissory notes, paid money which they substantially withdrew erred in law in refusing to attach the final liability to them as person liable in contract.
3. The judgment is against the weight of evidence.

The 2nd and 3rd Respondents adopt the issues for determination of the cross-appellant as already reproduced above.

The 5 issues formulated by the Appellant are apt and appropriate for the determination of this appeal. I would be guided by them.

It would appear that the 3rd defendant/appellant in their brief argued issues, I, II, III and V as formulated together.

It is submitted by the learned counsel for the appellant that though the appellant did not call evidence at the trial the onus was still on the respondents to prove their case. That in view of the evidence before the lower Court the plaintiff failed to make out a case of negligence of duty against the Appellant.

It is further submitted that to find the appellant bank guilty of negligence even where no finding of breach of contract can be made in this case, is wrong in law and it is to ignore entirely the special relationship of banker and customer. That the ‘neighbour’ principle set out in Donoghue v. Stevenson (1932) All E.R. I could not have been invoked in this case as no injury has been done to any of the contracting parties (the bank and its customer) which injury extended to a neighbour within the contemplation of the parties.

On issue No.4, the learned Counsel submitted that the learned trial Judge disregarded the provisions of S.258(1) (as amended) of 1979 Constitution in that he delivered the judgment well after the 3 months stipulated by the Constitution from the conclusion of final addresses.

The plaintiff/respondent adopt issues I and II and argued them together. It is submitted by the learned Counsel for the plaintiff that the evidence of the plaintiff is unchallenged uncontroverted and uncontradicted viva-voce and documentary evidence in the proceedings before the lower court entitled the plaintiff the judgment to be entered in its favour.

It is submitted by the learned Counsel for the plaintiff that the action for the plaintiff is not founded only on privity of contract but negligence and lack of duty of care according to paragraphs 4 and 5 of the amended statement of claim. Reference was made to Enyika v. Shell SP. Pet. Dev. Co. (1997) 10 NWLR (Pt.526) at 638.

On the issue that judgment of the learned trial Judge, was given in complete disregard to section 258(1) of the 1979 Constitution and section 4 of the Constitution (Suspension and Modification) Decree No. 17 of 1985, the learned Counsel has contended that the Appellant gave particulars which are not only misconceived but misleading. That, firstly addresses were not concluded on 22/5/92 but were finally concluded on 1/12/92. Learned Counsel did not concede that the judgment was delivered outside the period limited by law but that even if it was there is justification for it on the ground of illness of the learned trial Judge.

It is the contention of the 2nd and 3rd Respondents in their brief that the Appellant acted as a collector of the plaintiff but failed, refused or neglected to remit the Dollar equivalent to the plaintiff. It is therefore submitted that the learned trial Judge was right in holding that the Appellant was in fact responsible for the payment of the amount due to the Appellant.

However, I will now consider the arguments and submissions of the parties in this order. First and second issues will be taken together; Third and Fifth together while the Fourth issue will be considered singly. I have carefully considered the submissions of the learned Counsel for the Appellant on issues I and II. These are not based both on the facts and law. There is misconception here by the Appellant. The evidence of the plaintiff’s only witness and documents tendered in evidence in the proceedings before the lower court reveal the following:

1. Plaintiff’s action was not founded in contract only. By paragraphs 4 and 5 of the statement of claim, the 3rd defendant was duly appointed by the plaintiff and the 1st and 2nd defendants to look after its interest and collect the monies due under the bills which the plaintiff exported the water pump and related products to the 1st defendant. Paragraph 5 states that the 3rd defendant owes the plaintiff a duty of care.
2. Large sums of money being cost of water pumps and related products sold to the 1st defendant/respondent had been paid to the 3rd defendant/appellant for onward transfer to plaintiff/cross-appellant and the appellant bank failed and/or neglected to transfer the said sum of money.
3. The Appellant did not as a responsible bank make enquiries, but accepted that the plaintiff was paid by a spurious third party called Ituco International Co. Ltd.
4. There is ample evidence of payment to the 3rd defendant/appellant through various telex messages by the 3rd appellant itself to the plaintiff confirming that the money had been paid to the 3rd defendant by the 2nd defendant and that they had sought Central Bank’s approval to remit the money to the plaintiff. Exhibit P.W.1 DD is the documentary evidence confirming that the 3rd defendant was holding to the money meant for the plaintiff pursuant to the Bills of Collection.

These unchallenged, uncontroverted evidence of instruction to the 3rd defendant/appellant is contained at pp.109 and 110 of the records. There is also evidence that in spite of the money; 3rd defendant admitted it was holding in trust for the plaintiff, it never paid over. At page 112 of the records in answer to the question asked by the court to the only witness, he said the 3rd defendant admitted holding some money which they did not pass on to the plaintiff.

It would appear that the argument put forward by the Appellant borders on the narrow 19th century view that action in tort cannot arise from a breach of contract. The learned Counsel misapplied the fact of the instant case when he contended that the trial Judge did not set out the terms of the credit transaction so as to enable him establish that the appellant owed the plaintiff a duty of care. It will be recalled that the original contract of sale was between plaintiff and the 1st defendant. It was the chief executive of the 1st defendant that diverted collection from International Bank for Africa to the 3rd defendant. Then the said 3rd defendant acknowledged this service and responsibility in several telex messages to the plaintiff.

This assumption of responsibility demands for corresponding duty of care to the plaintiff. This kind of relationship is made clear in the case of Abusomwan v. Mercantile Bank of Nigeria Limited (1987) 2 NSCC 879, (1987) 3 NWLR (pt.60) 196 thus:

“the duty imposed here is not because there was a contract but because the defendant had impliedly undertaken not to injure the plaintiff. The obligation towards the contracting part extended to all such persons who were likely to be injured by the act or omissions of the defendant. They are the neighours who ought to be in the contemplation of the defendant”.

The action of the plaintiff in the instant case is not founded only on privity of contract but on negligence and lack of duty of care. What amounts to negligence depends on facts and what amount to duty of care has been recently visited by this court in Markus Enyika v. Shell B.P. Petroleum Dev. & 2 Ors (supra), where it was held that the doctrine of proximity as the foundation of duty of care is firmly established as the basis of an action in negligence. See also N.B.C. Ltd. v. Ngonadi (1985) 1 NWLR (Pt.4) 739; UBA Ltd. v. Achoru (1990) 6 NWLR (Pt.156) at 254 SC and UBN v. Nwokolo (1995) 6 NWLR (Pt.400) 127.

I am of the view that the duty arising from the proximity of the appellant with Exhibit ‘PW1 DD’ and the holding of the money for the plaintiff is so proximate that there is a duty to ensure that the plaintiff is not injured by any acts or conduct of non-performance. 3rd defendant has no reason to ignore payment of money in the bills which it had collected. This is clear breach of duty of care.

The evidence adduced showed that the 3rd defendant, as a collector duly appointed by the 1st defendant, should have taken care, as a banker. But instead, it completely neglected its duty in a move suggesting a lack of care and attention. It should not have taken instructions that someone has already paid the plaintiff, after it had informed the plaintiff that it had its money and was merely waiting for Central Bank approval to remit the said sum.

Sections 17 and 23 of Bills of Exchange Act Cap. 36, Laws of the Federation of Nigeria, 1990 is inapplicable to this case. The suit is not contemplated within and under any of the provision of that act.

The contention of the Appellant that it had only offered to help and had done ‘gratis’ work or being a bailee does not arise. This was not canvassed by the appellant at the lower court and it cannot be so casually raised on appeal.

The next questions raised in issues (III) and (V) respectively are whether the plaintiff/respondent proved their case and therefore were entitled to judgment.

There is also question of whether there was a proper basis for a finding that a fiduciary relationship existed between the plaintiff/respondent and the 3rd defendant/appellant.

As already observed, the evidence before the learned trial Judge entitled the plaintiff in their favour.

When the Appellant was instructed as a Banker to collect money on 60 days sight drafts, it reported it had done so and applied to the Central Bank as per its own admission, to source the foreign exchange for the total sum of $172,921.85. There is no rebuttal of the fact that the drafts were used by the Appellant to source for the foreign exchange, the sum of 864,609.25, Naira equivalent of $172,921.85 provided by the 1st and 2nd defendants.

It is in evidence that the appellant kept the money for five years. In spite of repeated demands and request, the appellant refused to release the money.

When Respondent’s solicitor wrote the reply he received which is Exhibit ‘PW1E’, there is a letter attached to this exhibit from a company based in Northern Blov Bayside, N. York, USA. that the beneficiary has been paid certain sums of money not the $172.921.85; which the plaintiff/respondent had consistently demanded. This letter is important as it completely weakens and whittles down the following submissions of the Appellant:

(a) That it has nothing to do with the plaintiff and does not owe it any duty of care and that it was not therefore negligent.

(b) That it was not appointed as a Bank to collect bills and none passed through it.

(c) That it was not in any way in collusion with the 1st and 2nd defendants because when the plaintiff saw the letter it was confounded and when it made enquiries it was told one late Dr. Udoh, the 1st defendant’s Managing Director and 2nd defendants has something to do with the company.

(e) That it did not conspire with the 1st and 2nd defendants to fraudulently deprive the plaintiff of its $172,921.85 due, for which it had received foreign exchange from the Central Bank of Nigeria.

The Appellant ought to have known at one time or the other that it was wrong to make credit or pay for goods imported into this country except by the due process of the law. That is why in the first place the Appellant applied to the Central Bank with relevant documents. One wonders why the payment in that letter was not to the plaintiff but to a spurious company called Ituco International Company. In any case it still beats one hollow, when the appellant supposedly received the letter on 23/7/85 saying that Ituco and not the plaintiff had been paid by 1st defendant, Zwischenstuck Eng Nig Ltd, as a prudent banker that was holding funds and had earlier communicated this state of affairs to the plaintiff/respondent why did it fail to write to it before returning the money to the 1st defendant, if at all it did so. Neither the appellant nor the 1st and 2nd defendants were willing at the trial to explain the circumstances behind the letter.

It is wrong for a bank to hold money as a Trustee, and without making enquiry and to accept that payment was made to someone else and not the beneficiary. The beneficiary should not be allowed to suffer losses in the amount the bank is holding.

It is not correct for the Appellant to say that the plaintiff did not leave the money in the care of the Appellant. The Appellant had the plaintiff’s money and documents. It was acknowledged in Exhibit PW1 DD that the Appellant was holding the money. The Appellant was appointed by the 1st defendant to receive money and it then applied to the Central Bank to receive foreign exchange for onward transfer to the plaintiff. There is no evidence that the Appellant did not receive the foreign exchange. Indeed, there was contract between the plaintiff and the-appellant for the latter to apply for foreign exchange and to send same to the plaintiff. From this, flowed the duty of care. In the case of Ambusomwan v. Aiwerioba (1996) 4 NWLR (Pt.441) 130 at 133 it was held thus:

“It is trite law that when one holds property beneficially owned by another person, the property remained that of its true owner and the holder is to account for such goods”.

The questions raised in the third and fifth issues for determination have been answered in the affirmative. Evidence of the only plaintiff witness was properly evaluated as to the money deposited with the Appellant. Justice demands that it has to be paid back. This money having not been paid to the plaintiff, they are entitled to it. The Appellant was grossly negligent and because they owe the plaintiff a duty of care as a result of its appointment as a Banker for collection they should be made to pay back.

I do not find it difficult in resolving the issue IV formulated by the Appellant in favour of the Respondent. Section 258(1) of the Constitution of 1979 stipulates that every court shall deliver its decision in writing not more than 3 months after the conclusion of evidence and final addresses. However, the Constitution (Suspension and Modification (Amendment Decree 1985) added a new subsection as follows:

”258(4), The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof”.

Addresses in the instant case were not concluded on 22/5/92 but were finally concluded on 1/12/92. See pages 166 and 167 of the records. At page 167 line 27, counsel for the appellants/3rd defendant, finally urged the court to dismiss the two applications and to give a date for judgment.

Counsel for the Appellant did not at the stage contest that the proceedings had been concluded long time ago. What gave rise to the application was a motion for an amendment of the claim which was filed on 31/1/92. It had been in the Court’s file and was slated for 7/2/92 but due to some inadvertence or because the court did not sit the application was not heard. The said application was opposed by counter -affidavit filed on behalf of the defendant. The second application to arrest judgment was heard on 1/12/92 and it was opposed by counsel for the parties. The learned trial Judge dealt exhaustively with these applications in the judgment delivered. Section 258 of the 1979 Constitution is not a rigid provision.

In Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309 at page 321 this court held that:

”…If at the end of the day, the court gives judgment in the matter without hearing the motion it is not good defence that its attention was not called to the existence of the motion, particularly when a decision on the motion is relevant to the outcome of the judgment”.

The plaintiff would have definitely been denied fair hearing, if when the court discovered that a motion was pending since January, 1992 and it had ignored it and proceeded to judgment.

This is clearly one of the reasons for the delay and it had not occasioned ‘a miscarriage of justice’.

It is also on record that when the addresses were taken on 22/5/92, the learned trial Judge adjourned the case to 10/9/92 for judgment. On that date, the Court did not sit and gave reason why it could not do so. This reason is not attributed to Judge’s mental incapacity but that he was indisposed. It is not shown that the learned trial Judge negligently or flagrantly breached and ignored the provision of section 258(1) of the Constitution.

The learned Counsel for the Appellant has submitted that in the course of judgment the learned trial Judge showed that he had either forgotten the evidence after a long time or had not understood the evidence presented before him. He gave one instance that is at page 176 of the record the Judge stated in his summary of the facts thus:

”The 3rd defendant was the bank appointed by the plaintiff and the defendants to look after the plaintiff’s interest”.

Learned Counsel for the defendant has submitted that this statement is contrary to the evidence of P.W.1 at page 112 and 115 where he assented that the 3rd defendant was the banker of 1st defendant and that the plaintiff had no contract with them. To agree with the interpretation of S.258(1) given by the learned Counsel for the Appellant is to defeat the purpose and the intension of the law makers of that section of the Act.

In any case, paragraph 4 of the amended statement of claim of the Appellant at page 79 of record agrees with summary of facts made by the learned trial Judge at page 176 in his judgment. It is the learned Counsel for the defendant who submitted that this statement is contrary to the evidence of P.W.1.

To my mind, this is not a good instance justifying the Appellant’s assertion that the trial Judge’s indisposition has affected his recollection of the facts in this case, to justify the application of section 258(1) of the 1979 Constitution.

The direct interpretation and purpose of S.258 (1) is the desire to end the then prevalent delay in delivering of judgment in the past particularly in the lower Courts where some Judges were in the habit of reserving their judgment for such long periods as to lose the advantage of having and seeing the witnesses and observing their demeanour, for the purpose of assessing their credibility. See Ifezue v. Mbadugha (1984) 1 SCNLR 427, (1984) All NLR page 256 per Aniagolu, J.S.C. at page 269 and Bello, J.S.C (as he then was) at page 287. See also Awobiyi & Sons v. Igbalaiye Bros (1965) 1 All NLR 163.

The ratio decidendi in those cases have been clearly over-taken by the amendments in Decree No.17 of 1985. The direct position of the law now is not only the consideration of inordinate delay perse, but whether the delay has amounted to a miscarriage of justice.

Subsection 258(1) of the 1979 Constitution and sub-section 4 of Decree 17 1985 should be read together. It has been held by the Supreme Court in Ojokolobo & ors v. Lapade Alamu & Ors (1987) 3 NWLR (pt.61) 377, (1987) SC (pt.1) 124 at 145 that the amendment introduced by the subsection (4) and (5) of Decree No.17 go beyond a mere procedure. His Lordships held, inter alia, per Obaseki, J.S.C. thus:

”The amendments conferred jurisdiction which the courts exercising appellate jurisdiction did not have previously and took away jurisdiction it had previously. It altered the substantive law by giving validity to judgments which would have been declared null and void. It did not validate judgments that are already null and void, I am of the view that delay in delivering the judgment by the lower Court does not occasion a miscarriage of justice. The Appellant has failed to show that by the delay, the learned trial Judge did not remember the facts of this case.

In the result for all that I have said in this judgment, this appeal fails.

I shall now consider the cross-appeal filed by this plaintiff. I have already set out above 3 grounds of the cross-appeal. The 3 issues formulated by the cross-appeal are as follows:

(a) Having granted the amendment to claim the sum of $172,921,85 with interest at 12% per annum from 1st August, 1983; is the plaintiff not entitled to judgment against the defendant for the said sum having regard to the fact that the American dollar was the money of account?

(b) Whether the plaintiff/cross appellant is not entitled to judgment against the 1st and 2nd defendants jointly and severally when the 3rd defendant having regard to the finding of fact that they imported the goods and that the sum of $172,921.85 has not been paid for goods sold and delivered to the 1st and 2nd defendants?.

(c) Is the cost awarded against plaintiff in favour of the 1st and 2nd defendants justifiable in the circumstances?”

In response to the cross-appeal, the 2nd and 3rd Respondents adopted the three issues formulated by the cross-appellants in its brief.

In the fist issue in this cross-appeal, it is the contention of the cross-appellant that the money of account being in dollars, judgment should have been given to the plaintiff cross-appellant in dollars. Reliance was placed on the Supreme Court decision in U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (pt.421) 585. It is submitted that the cross-appellant sold in dollars and expects to recover its money in dollars. The learned Counsel for the cross-appellant further strengthened his submission on the ground that the acknowledgment by the promissory note Exhibit ‘P.W.1 DDA’ was in dollars; the telex messages in which the 3rd defendant quoted the money exportable to the cross-appellant was quoted in dollars; that all in all the transactions and most part of the judgment was read in dollars. It is therefore finally submitted that the judgment should be corrected to reflect the money of account of $172,921.85, with interest at 12% per annum from August 1983 until payment.

The cross-appellant by its application of 28/1/93, the sum due for payment both in the writ and statement of claim whereas its writ of summons filed is endorsed for the sum of N1,729,289,50, the equivalent of $I72,921.85. The same amount is claimed in the second amended statement of claim filed by the cross-appellant. (Refer page 144 of the record of proceedings).

It is trite law that a statement of claim always supersedes the writ of summons. Hence, if a relief is claimed in the writ of summons but not in the statement of claim, it shall be deemed to have been abandoned. However, a relief endorsed in the statement of claim which is not in the writ subsists. See Eze v. George (1993) 2 NWLR (Pt.273) 86; Teller v. Akere (1958) WNLR 26.

It is the cross-appellant’s claim as presented before the court that should be considered by the court. The decision of the Supreme Court in U.B.N. Ltd. v. Odusote Bookstores Ltd (supra) in the lead judgment of Hon. Justice Wali, J.S.C., it is stated thus:

“I may only need to emphasize that in transactions involving foreign currency, where the unit of the account is foreign currency, the debtor must provide enough local currency equivalent to the currency of account whenever the debt is being settled”.

Courts should frown on claim based on foreign currency not expressed in our local currency. The cross-appellant rightly provided N1,729,281.5 as equivalent of $172,921.85 which accords with the decision in Odusote’s case (supra)

The learned trial Judge was right in considering and choosing the Naira equivalent. For since the rules of court prescribe that a statement of claim should state specifically the relief which the plaintiff claims, it must be taken that it automatically alters, modifies or extends the writ without necessity of a formal order of amendment of the writ, see Eze v. George (supra); Fadahunsi v. The Shell Co. of Nig. Ltd. (1969) NMLR 304; Lahan v. Lajoyetan (1972) 1 All NLR (pt.2) 217.

The specific claim on the amended statement of claim is for the sum of N1,729,281.50 or $172,921.85. This has subsequently altered or modified the endorsement as the writ of summons.

The correct definition of the word ‘or’ in the con of the endorsement by the cross-appellant in its statement of claim is necessary. In Lexicon Webster Dictionary Vol.1 Encyclopedia Edition 1977, the word ‘or’ is defined to mean a particle used to connect words, phrases, or clauses representing alternatives; as this road or that; one used to connect alternative or equivalent terms. Webster Comprehensive Dictionary (International Edition) defines ‘or’ as introducing an alternative; as ‘stop or go’, ‘red or white’; introducing an equivalent, the second alternative of a choice limited to two (Italics mine).

In law, it is trite that the word ‘or’ is prima facie and in the absence of some restraining con, to be read as disjunctive. See Green v. Premier Glynrhonwy State Co. Ltd. (1928) 1 K.B 561 CA. Lamgham v. Peterson (1903) 19 T.L.R. 157.

In Frank Mukoro-Mowoe v. The State (1973) 1 All NLR (pt.1) 296 at 312, the Supreme Court construed the word ‘or’ as disjunctive while considering the word ‘or’ in section 443 of the Criminal Code, Cap.28 of the Laws of Western State of Nigeria. In this respect, the phrase the sum of N1,729,287.50 or $172,921.85 is to be read disjunctively. I am of the firm view that the pronouncement of the learned trial Judge in his judgment, to reflect N1,729,281.50 claimed in alternative as at 18/1/93 is a good decision and I so hold.

Issue 2 deals with whether the cross-appellant is entitled to judgment against the 1st and 2nd defendants jointly and severally with the 3rd defendant having regard to the finding of fact.

The vital and decisive findings of the trial Court were based on the plaintiff/cross-appellant’s only witness in the case. The learned trial Judge’s findings are as follows:

“…The plaintiff’s only witness gave evidence soberly and impressed me as a gentleman who will not sacrifice the truth for the benefit of his case. His evidence is amply supported by documentary evidence. I accept his evidence and make findings of fact in accordance with it”.

It is trite law that ascription of probative values to evidence is a matter primarily for the Court of trial. Where a trial Court unquestionably evaluates the evidence and appraises the facts, it is no business of the Court of Appeal to substitute its own views of undisputed facts with the views of the trial Courts See Balogun v. Agboola (1974) 1 All NLR (Pt.2) 66; Laguro v. Toku (1986) 4 NWLR (Pt.33) 90.

This Court will only interfere with findings of fact where it is satisfied on the evidence before it that the findings are wrong and could not ordinarily have been based on the evidence. I do not see anything in the findings of the trial Judge that could invite this court to interfere with such findings.

The findings of the trial Court is that ‘the 3rd defendant admitted in writing that payments were made to it. It also presented to the plaintiff that it was pursuing foreign exchange allocation for remittance of the money’.

The learned trial Judge also held that a fiduciary relationship was clearly established between the plaintiff and the 3rd defendant whereby the plaintiff was the beneficiary of the money paid to the 3rd defendant by the 1st defendant.

The learned trial Judge also held at page 186 of the record that as between the plaintiff and the 3rd defendant there is no denial that money was deposited by the 1st defendant with the 3rd defendant for the benefit of the plaintiff. It is further held thus:

”I find as a fact that the 3rd defendant without exercise of the care and caution expected of a prudent Bank and a responsible trustee of the funds accepted without question the pretence that the plaintiff was paid by a spurious third party”.

I do not think that such factors that could make me interfere with the above stated findings by the lower Court are present. This Court should not easily disturb the findings of fact of a trial Judge who had the singular privilege and opportunity of listening to the witnesses and watching their demeanour even though such findings of fact or the inference drawn from them may be questioned in certain circumstances. See Faloyinbo & Ors v. Williams (1956) SCNLR 274, (1956) 1 FSC.87.

I am of the view that the evidence before the lower Court was properly evaluated as such the trial Judge was right in holding that the respondents have no liability.

Issue 3 in the cross-appeal is the question of whether the costs awarded against the plaintiff in favour of the 1st and 2nd defendants was justifiable in the circumstance.

The learned trial Judge having dismissed the claim against the 1st and 2nd defendants awarded N2,000.00 costs against the plaintiff.

The cross-appellant’s counsel in the brief has submitted that the award of this cost is unjustifiable.

If the plaintiff fails to institute an action against the proper party or parties as a result of which the party is wrongly joined, no liability can be ascribable, then such a party is deemed wrongly joined and not liable consequently, the party is entitled to compensation by way of costs.

In the instant case, the award of costs by the learned trial Judge against the cross-appellant in favour of the 1st and 2nd defendants was well founded in law. This is so considering the averment of the cross-appellant in its statement of claim, paragraph 4 which states as follows:

The 3rd defendant was at all times material to this action the company/Bank appointed by the plaintiff and the 2nd and 3rd defendants to look after its interest and collect the monies due under the bills which the plaintiffs exported the water pump and related products the 1st defendant”.

The cross-appellant’s only witness confirmed this during the trial. The trial Judge found in favour of the 1st and 2nd defendants and exonerated them on the strength of the uncontroverted and unchallenged evidence. To do otherwise will amount to double compensation in favour of the cross-appellant since the appellant has been found liable in negligence to cross-appellant.

In the result, the appeal against the judgment of the lower Court fails and it is dismissed. So also is the cross-appeal which is completely devoid of any merit. I also have no hesitation whatsoever in dismissing it.

However, having regard to the appeal and the cross-appeal, I do not find it appropriate to make any order as to costs.

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Other Citations: (2000)LCN/0846(CA)