Tsokwa Oil Marketing Co. Nig. Ltd. V. Bank Of The North Ltd (2002)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C. 

In the High Court of Taraba State holden at Wukari, the plaintiff (hereinafter referred to as “the appellant”) filed an action by a writ of summons dated 22/10/91 against the defendant (hereinafter called “the respondent”) in a claim founded in breach of contract in the sum of N4,707,752.80 (Four million, seven hundred and seven thousand, seven hundred and fifty-two naira, eighty kobo) for the failure of the appellant to provide performance bond as earlier agreed in writing. The appellant in addition equally claimed 10% interest on the said sum with effect from 17th day of October, 1991, until judgment and thereafter until final payment. Subsequently, the writ was issued and served on the respondent through its manager at Rafin Kada branch, Taraba State. Consequently, the respondent entered an unconditional appearance on 9/12/91 through its solicitor. Pleadings were ordered, duly filed, exchanged and subsequently amended by the parties before the case eventually went to trial.

For purposes of clarity, I hereby set out the appellant’s further amended statement of claim in paragraph 9 thereof as follows:

“9. WHEREFORE the plaintiff claims the sum of N4,707,752.80 (Four million, seven hundred and seven thousand, seven hundred and fifty-two naira, eighty kobo) being special damages for breach of contract to provide the plaintiff N300,000.00 facility or performance bond or executed deed of guarantee as agreed in writing by the defendant and accepted by the plaintiff …..The plaintiff also claims 10% interest on the above sum from November, 1991 until judgment and also from date of Judgment until full payment and also the full costs of this action.”

The facts of the case giving rise to this appeal may be briefly stated as follows:

The appellant, a limited liability company, carrying on the business of oil marketing and bridging throughout Nigeria was at all material times to this action, the respondent’s customer at its Rafin-Kada branch in Wukari Local Government Area branch in Taraba State.

The appellant in a letter dated 8th May, 1989 (exhibit 74) requested the respondent for a performance bond for N300,000.00 in order to enable it bridge petroleum products from the Nigerian National Petroleum Corporation depot.

The respondent in response to the appellant’s application, gave conditions for the appellant to comply with before the performance bond could be released to it. The conditions were stated in exhibit 75 which is the respondent’s letter dated 3 October, 1989 and contained on page 175 of the record of appeal. The conditions succinctly stated are as follows:

“Release of the executed performance guarantee to be subjected to:-

(i) Execution of the deed of legal mortgage of property covered by certificate of occupancy No. 0136.

(ii) Taking comprehensive insurance cover of pledged property without interest duly noted.

(iii) Submission of company’s recent past three (3) years audited accounts.

(iv) Written acceptance of the terms and conditions governing the facility.”

The appellant, by exhibit 76 dated 23 November, 1989, wrote to the respondent accepting the conditions stated in exhibit 75 but this merely complied with only the fourth condition thereof. The appellant later forwarded the legal mortgage in respect of the first condition.