United Bank For Africa Plc. V. Btl Industries Ltd (2006) LLJR-SC

United Bank For Africa Plc. V. Btl Industries Ltd (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is an appeal by the defendant against the judgment of the Court of Appeal, Lagos Division delivered on the 22nd day of July, 2003 in which the aforesaid court confirmed the decision of the trial court. The claim of the plaintiff before the trial court as contained in paragraph 62 of the 2nd further and better amended statement of claim is as follows:-

“1. Declaration that the defendant was in breach of its duty to the plaintiff by its failure to remit to the overseas suppliers the purchase price (in foreign currency) of the goods supplied by its overseas suppliers for which payment was duly made by the plaintiff.

2. An order directing the defendant to pay the sum of:-

(a) Pounds Sterling #3,632,872.93

(b) Us Dollars 3,384,263.37

(c) French Francs 3,478,031.85

(d) Deutsche Marks 3,431,790.47

(e) Belgian Francs 3,758,533.10

(f) Dutch Guilders 672,810.34

(g) Danish Krone 79,515.00

to the plaintiff being the value of the goods ordered from overseas suppliers and received by the plaintiff and for which payment was made in Naira to the defendant at the material time at the prevailing rate of exchange and which the defendant has failed to remit to the overseas suppliers despite repeated demands.”

Alternatively to relief 2 above:

An order directing the defendant to pay to the plaintiff the naira equivalent of the said sums of money at the prevailing rates for exchange at the time the defendant chooses to pay the plaintiff.

6. The sum of N378,780,244.00 being anticipated profits from 1985 to 1994.
7. Loss of profit at the rate of N6,302,510.00 per annum from 1994 to date of judgment.
8. Interest on judgment debt at the rate of 7.5% until payment is reflected by the defendant.

Alternatively to 1 – 5 above 6.

6. A declaration that the defendant was in breach of its duty to the plaintiff by its failure to duly inform the plaintiff in 1988 that the Central Bank of Nigeria had returned the sum of N8,541,557.66 which was to be remitted to the plaintiffs overseas suppliers.
7. An order directing the defendant to pay to the plaintiff the sum of N8,544,577.66 returned by the Central Bank of Nigeria to the defendant with accrued interest to date.
8. An order directing the defendant to pay to the plaintiff the difference in exchange rates in 1988 and the prevailing rates of exchange by the Central Bank of Nigeria at the time of judgment or the prevailing rate of exchange as the defendant chooses to pay the sum of:

(a) Pounds Sterling 3,632,872.93

(b) US Dollars 3,384,263.37

(c) French Francs 3,478,031.85

(d) Deutsche Marks 3,431,790.47

(e) Belgian Francs 3,758,533.10

(f) Dutch Guilder 672,810.34

(g) Danish Krone 79,515.00

12. Interest on the said sum N8,544,557.66 at the prevailing rate of interest annually in 1988 when the Central Bank of Nigeria released the money to the defendant up to the time of judgment.
13. The sum of N18,907,530.00 being anticipated profit from 1955 to 1987.
14. Interest at the rate of 7.5% from time of judgment to the time of payment by the defendant.”

Pleadings were ordered, filed, exchanged and amended. At the trial the plaintiff called five witnesses while the defendant called 7 witnesses. Five of them were called in Nigeria, while two of the defendant’s witnesses testified in London. On the 19/6/2002 learned counsel adopted their written addresses and in addition orally addressed the court. After an exhaustive treatment of the evidence, the learned trial Judge entered judgment in favour of the plaintiff thus:-

“Accordingly the plaintiff’s claims succeed. Prayers 1,2,3,4 and 5 of the plaintiff’s 2nd further and better amended statement of claim are granted with the following reductions.

As regards prayer 3 it shall be sum of N300m.

As regards prayer 4 it shall be N5m per annum from 1994 to date of judgment.

In the lights of the fact that the main claim succeeds the alternative claim is hereby refused. The judgment sum shall attract an interest at the prevailing interest rate fixed by the Central Bank of Nigeria from 1987 until judgment and at 7% until the judgment paid.”

Dissatisfied with the judgment, the defendant lodged an appeal on 11 grounds of appeal in the Court of Appeal. Distilled from the grounds the defendant raised six issues for the determination of the appeal. In its judgment delivered the 22nd day of July, 2003, the Court of Appeal dismissed the defendant’s appeal. Still dissatisfied, the defendant has now appealed to this court and it was with the leave of this Court that the defendant has filed the second amended notice of appeal on the 19/9/2006. The said second amended notice of appeal contains 11 grounds of appeal. Before the examination of the grounds of appeal and the issues submitted for the determination of the appeal, it shall be necessary to briefly state the facts as found by the learned trial Judge as follows:-

“The plaintiffs business is importation and distribution of building materials, industrial chemicals, and raw materials. These goods are imported from the plaintiff’s overseas suppliers namely:

Meridian Trade Corporation; Meridian International Credit Corporation and International Trade Meridian, Meridian Hamburg, Germany and Tata of India. The plaintiff has been banking with the defendant since 1980 and enjoys credit facility which it used to meet the costs of importation from its overseas suppliers. The plaintiff imports items on credit from overseas suppliers and the items are usually sent with bills of exchange, or bills for collection or by letter of credit. Between 1981 and 1983 several of such bills and letters of credit, exhibits P1 to P330 were received by the defendant on behalf of the plaintiff. The price of each bill was denoted in foreign currency, and the total amount of Naira equivalent of the foreign currencies was N8,541,557.66 at the time the goods were ordered. The account of the plaintiff with the defendant was debited for the said amount. The defendant was expected to use the sum debited to secure Central Bank of Nigeria allocation of foreign exchange. The plaintiff seeks by this suit a return of the money it paid to the defendant for remittance to the overseas exporters who had supplied the goods to the plaintiff. The plaintiff claims that the defendant negligently failed to secure Central Bank of Nigeria allocation of foreign exchange despite persistent requests that the defendant should remit the money to the overseas supplier.

At this stage it is very important that the situation in Nigeria as at 1983 with regards to importation of goods is explained, and what is expected of an importer P.W2 Mr. Tola Lapite a banking and finance expert and consultant explained the situation in Nigeria at the time. I adopt his explanation. He said and I quote him:

‘By the end of 1983 there was an accumulation or arrears of unpaid bills inform of bills for collection, letters of credit and direct remittance by Central Bank of Nigeria. This was due to non-availability of foreign exchange at the time.”

In 1984 the Federal Government of Nigeria struck an agreement with overseas creditors to refinance these unpaid bills. They involved Chase Manhattan Bank, New York as the Intermediary between Federal Government of Nigeria and the overseas creditors bank. Consequently Central Bank of Nigeria directed all banks to submit claims on behalf of their customers to them for presentation to Chase Manhattan Bank. Simultaneously the overseas creditors bank submitted claims on behalf of the creditors to Chase Manhattan Bank who was expected to merge the claims submitted by both sides. This was in 1985. There was preliminary report in 1985 sent by Central Bank of Nigeria to the banks to confirm the outstanding unpaid bills to Central Bank for verification by Central Bank of Nigeria. This report is called Debtors Summary Status Report, 1985 (DSSR 1985). The banks were expected to inform the affected customers about the requirement from Central Bank of Nigeria and guide them to complying.

After the bank must have contacted the customer and collected information from them, they resubmitted the report to Central Bank of Nigeria. Central Bank will then verify the Report for onward submission to Chase Manhattan Bank, New York, U.S.A. The final report started coming out in 1987. After matching the claims of creditors (overseas) and Nigerian importers, the successful claims and the unsuccessful claims were reported to Central Bank and upon receipt of this report Central Bank Nigeria debited the accounts of the banks and promissory notes were issued to the overseas creditors. The unsuccessful and rejected bills were also advised to the banks who in turn informed their respective customers of their bills. If a bill is unsuccessful the money paid to the bank by the customer would be returned to Central Bank of Nigeria who returns it to the bank and then to the customer.”

From the pleadings and evidence before the court, the following facts are not in dispute.

1. The plaintiff/company was a customer of the defendant bank for a long time. See paragraphs 4, 5, 6,7 and 11 of statement of claim, admitted by paragraph 1 of the statement of defence.
2. The plaintiff was a valued customer of the bank and had a rosy time with the defendant bank between 1980 to 1984. See defendants letter, exhibit B and evidence of DW1 and DW2.
3. The defendant received the bills for which payment was duly made. See evidence of PW4, DW1 and DW3.

The unit of account was foreign currency as stated in paragraph 18 of the statement of claim. It is not denied. See also evidence of PW4.

5. The total amount of Naira equivalent of the foreign currency was N8,541,557.60k. All relevant shipping and exchange control documents, all clearing documents including bills of exchange and tax clearance certificate were submitted to the defendant in respect of each transaction to facilitate quick remittance of the value to the overseas suppliers. The bills usually have maturity days of about 180 days – See exhibits P1, P330 evidence of PW4, DW1, DW2, DW5.
6. The plaintiff’s bills fell within the refinancing scheme.

It is trite law that what is admitted need not be proved. The defendant on its part pleaded that the Central Bank of Nigeria did not return or refund the sum of N8,541.557.66 to the defendant in respect of the plaintiff’s transactions. The plaintiff has no locus standi to bring the action. The plaintiff’s action is caught by section 8 of the Limitation Law, Cap. 118, Laws of Lagos State, 1994. That the defendant was not negligent in handling the plaintiff’s transaction. DW1- Mr. Ojukwu Chukwuemeka, A Senior Manager and Head of Foreign Trade Department with the defendant testified under cross-examination thus:

“I know from records that in 1988 Central Bank of Nigeria returned all money in respect of unremitted bills back to Commercial Bank. The Commercial Bank is not expected to return it to the owner. The money should be kept in trust for the beneficiaries pending satisfaction of certain conditions. The condition for keeping money for unremitted bills is the beneficiaries bank should send the Nigeria Bank an authenticated telex message saying that the beneficiary is in agreement with any case of need in Nigeria to be credited with the money. This is because the importer having claimed and sold the goods has received value for the supplier. That is why we are holding on to the money till today.” According to the above testimony the Central Bank of Nigeria returned the plaintiff’s money to the defendant as far back as 1988. Till today the defendant holds on to the plaintiff’s money. This suit is for the return of the money.”

Now distilled from the aforesaid 11 grounds of appeal the defendant hereinafter referred to as appellant and the plaintiff, the respondent has formulated and submitted the following issues for the determination of the appeal:-

“(i) Whether in view of the pleadings of the respondent, the trial court has subject matter jurisdiction to adjudicate on the matter.

(ii) In the event that it is held that the trial court had subject matter jurisdiction, was the Court of Appeal right in confirming the decision of the trial court that the plaintiff’s action is not statute-barred.

(iii) If the respondent’s action is not statute-barred, does the respondent have the locus standi to prosecute this case

(iv) Was the Court of Appeal right in refusing to set aside the judgment of the trial court on the ground that the said judgment is not perverse

(v) Whether or not the respondent’s case should not have been dismissed by the lower courts having regard to the plea of the appellant and the evidence before court that the claim of the respondent runs contrary to public policy and act of state doctrine.

(vi) Should the award of damages and interest by the trial court and confirmed by the Court of Appeal be allowed to stand

In his brief for the respondent the learned counsel has formulated and submitted similar issues. The appellant also filed the appellant’s reply brief. I shall in this judgment deal with the appeal by reference to the issues formulated by the appellant.

Issue 1

“Whether in view of the pleadings of the respondent the trial court has subject matter jurisdiction to adjudicate on this matter.”

Under this issue the appellant contends that the trial High Court has no jurisdiction to entertain the matter since the case is about the procurement of foreign exchange for payment of goods imported into Nigeria by sea through the appellant by letters of credit with banking facilities. The documentary evidence clearly shows the intricate link with the Central Bank of Nigeria. It involves and concerns the revenue as well as the monetary and fiscal policy of the Federal Government, thus the proper court is the Federal High Court which has the exclusive jurisdiction to entertain this kind of case. It is further argued that by section 1(i)(h) of the Admiralty Jurisdiction Act the Federal High Court has exclusive jurisdiction over “any banking or letter of credit transaction involving the importation of goods to Nigeria in a ship. Whether the importation is carried out or not and notwithstanding that the transaction is between a bank and its customers.” It is again submitted that the action was instituted in 1994 and that by virtue of the decision in Adah v. NYSC (2004) 13 NWLR (P.891) 639, (2004) 7 SC (Pt.11) 139, it is the law at the date that determines subject matter jurisdiction.

The respondent on the other hand argued that the claim is one simply found on breach of contract and for the return of the money paid to a bank by a customer due to total failure of consideration. It is submitted that the dispute herein is based on a breach of contract and negligence and the Federal High Court does not have any exclusive jurisdiction. The mere fact that the unit of account is foreign currency does not make it a foreign exchange matter. The learned counsel referred to Oyegoke v. Iriguna (2002) 5 NWLR (Pt. 760) 417 at 438, NDIC v. FMB (1997) 2 NWLR (Pt. 490) 735, see also CCB. Ltd. v. Mbakwe (2002) 7 NWLR (Pt. 755) 163, De Lluch v. SBN Ltd. (2003) 5 NWLR (Pt 842) 1 at 21.

I have carefully examined the claims of the respondent and I am unable to find on the pleadings or the evidence that the plaintiff as the respondent was making a claim predicated on the non-issuance or otherwise of letters of credit or of failure or otherwise of goods shipped to Nigeria. In my view, this is a straight forward matter of a claim for negligence and for breach of contract and for the return of money. The claim has nothing to do with shipping marine commerce or marine navigation. In the CCB v. Mbakwe case supra at page 179 it was held:-

“Where a bank is engaged to transmit or remit money from a purchaser to an issuing bank without more, that singular act does not confer status of issuing bank on the remitting bank so as to deprive the purchaser of the right to maintain an action against the remitting bank in the event of a default in remitting the agreed sum to the designated party.”

As mentioned above the claim of the respondent before the trial court does not in any way relate to fiscal or monetary policy of the government neither does it relate to the revenue of the Government. It is a claim essentially founded on negligence and breach of contract. I am of the, view that the trial High Court has the necessary jurisdiction over the subject matter of the dispute. See NDIC v. Okem Enterprises Ltd. (2004) 10 NWLR (Pt.880) 107 at 222. I accordingly resolve issue No. 1 against the appellant.

Issue No.2

This is concerned with the question whether the claim of the respondent is statute-barred. It is submitted that the lower courts were in error to have held that section 8 of the Limitation Law of Lagos State does not apply to bar the respondent’s claims. They acted erroneously when they held the period commenced from when the contents of exhibit C were brought to the attention of the respondent, in 1994 even though exhibit was written in 1988. It is submitted that reliefs 1 and 6, the two declaratory reliefs are caught up by the Limitation Law Relief No. 1 is a complaint of negligence/breach of contract on part of the appellant for failing to remit the sums to the foreign suppliers. It is claimed that the right of action accrued six years after i.e. 1983 – 1989. It is submitted that the respondent could not file the action in 1994 because the duty to remit letter of credit starts after 180 days after lodgment of funds. It is further submitted that the claim by the respondent that the appellant continued to make assurances and promises that the money would be transmitted, or that the respondent was deceived into believing so, is not sufficient. Learned counsel referred to section 58 of the Limitation Law of Lagos State and submits that only fraud or concealment of fraud will prevent the limitation period from running. It is again added that allegation of fraud is to be proved beyond reasonable doubt.

It is again argued that the respondent could have known of the existence of exhibit with reasonable diligence. In any event no fraud was pleaded and none was proved.

For the respondent it is submitted that the appellant has failed to state how the respondent could have discovered exhibit which was addressed by the CBN to the appellant. A customer of a bank should believe what the bank has repeatedly told him. The respondent further added that he had specifically pleaded the assurances the appellant falsely continued to give him and that it was not until April 1994, that the appellant became aware that the Central Bank had returned the money to the appellant since 1988. It is argued that apart from the general denial of paragraphs 44 and 45 of the further and better statement of claim, the appellant did not controvert this in his statement of defence.

Now, this issue has been raised and considered by the lower courts. The trial Judge held at page 432 of the records:-

“The fact that between 1983 to 1994 the chairman of the plaintiff PW4 was repeatedly assured by top officials of the defendant bank to wit: Its Managing Director and Chief Executive Alhaji S. S. Baffa, Branch Managers, Mr. Adedeji and Mr. Oyebola that the money would be remitted to the overseas suppliers is established to my satisfaction. The defendant clearly does not dispute the above. If the plaintiff was constantly assured as late as 1994 that his money would be remitted to the overseas supplier, then how may I ask can a cause of action arise in 1994…”

The court also found the appellant did not cross-examine the witness on this vital issue of concealment and deceit. I may add, that there was no appeal against such finding in Court of Appeal. The Court of Appeal also found that there was concealment of crucial fact and deceit. The cause of action only arose when the respondent accidentally stumbled on exhibit C. The trial court found that the totality of the appellant’s conduct in this case is fraudulent and concealment of fraud and the Court of Appeal affirmed this finding. See Arowolo v. Ifabiyi (2002) 4 NWLR (Pt. 757) 356. In the case of Jallco Ltd. v. Owoniboys Tech. Services Ltd. (1995) 4 NWLR (Pt.391) 534 at 547, Mohammed, JSC stated:-

“In considering whether an action is statute-barred, it is relevant to ask, “when does time begin to run This court, in the case of Fadare & Others v. Attorney-General of Oyo State (1982) NSCC 52 at 60 referred to the case of Board of Trade v. Cayzer; Irvine & Co. Ltd. (1927) AC 610 where it held:-

‘Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed.’

It is crystal clear from the facts of this case that the respondent had not became aware of the wrong entries in his accounts until in 1980/81. That being the case, the right of action accrued when the respondent’s demand to have his account credited was denied and refused and this happened in 1980/81. The claim of the respondent is not therefore statute-barred.”

Similarly in my view, the right of action in this matter clearly accrued in 1994 when the respondent became aware of the existence of exhibit C. The respondent could not reasonably be expected to file an action against the appellant when the appellant was always giving him assurances that his bills and letters of credit were being processed by Central Bank. Indeed there could be no cause of action. I accordingly resolve this issue No.2 also against the appellant.

Issue No.3

This is concerned with the question whether respondent has the locus standi to prosecute the claim. It is submitted that the locus of the respondent to institute this action was challenged in paragraph 33 of the statement of defence. It is argued that by paragraph 19 of the further and better statement of claim, the respondent pleaded that the goods covered by bills in exhibits PI – P331 had infact been shipped to it and that the goods were collected by it. It is submitted that under the circumstances the respondent would have no cause of action and cannot maintain an action for the recovery of the money meant for the goods. The money paid by the respondent becomes no longer his money but money held by the appellant for onward transfer to the overseas suppliers. Learned counsel refers to the case of Akinsanya v. UBA (1986) 4 NWLR (Pt.35) 273, (1986) 2 NSCC 980. Though in that case the Supreme Court was dealing with a confirmed letter of credit, in the instant case we are dealing with unconfirmed letters of credit. It is argued that in the case of Union Bank v. Odusote (1995) 9 NWLR (Pt.421) 558 although such an action was allowed, the issue of locus standi was never raised and argued. Learned counsel also referred to unreported case of Adegoke Motors v. Savannah Bank suit No. CA/C/399/96 in which Ayoola, JCA as he then was, relied and quoted with approval the dictum of Lord Denning in W. J. Allan & Co. Ltd. v. El Nasr Export (1972) 2 QB 189 at 212. Learned counsel has submitted that the Court of Appeal was in error to have confirmed the decision of the trial court on this issue.

Now, the trial court at pages 428 – 429 rejected the argument of the appellant on the issue of locus standi. He stated thus:

“The plaintiff contracted the defendant to procure foreign exchange required to discharge its liabilities to foreign suppliers. The foreign suppliers shipped the goods to the plaintiff a long time ago, but the plaintiff has not paid for the goods till today. The liability of the plaintiff to the foreign suppliers remains. Having failed to carrry out the plaintiff’s instructions the only sane thing to do is return the money to the plaintiff. The defendant says they are holding the money in trust [see evidence of D.W.1]. The defendant has held on to the plaintiff’s money now for about 18 years. See also exhibit V wherein the defendant informed the overseas suppliers that the failure to remit the money was because the plaintiff had not paid the naira cover when infact the plaintiff had paid the money to the defendant, a fact admitted by the defendant, but which he found convenient to deny to the overseas suppliers. Holding unto the plaintiff’s money for 18 years is criminal. The defendant has no justification whatsoever … See Savannah Bank v. Adegoke Motors CA/C/399/96; Union Bank v. Odusote (1995) 9 NWLR (Pt.421) 558. The plaintiff is entitled to a return or a refund of his money to enable him pay his overseas suppliers and restore his badly damaged name ….”

The Court of Appeal in my view, rightly confirmed the above finding of fact and that the respondent has clearly the locus standi to institute the action. In the case of CCB (Nig.) Ltd. v. Mbakwe (2002) 7 NWLR (Pt.755) it was held at 163 thus:-

“On who can sue bank for failure to remit money abroad- where a bank is engaged to transmit or remit money from a purchaser to an issuing bank without more, that singular act does not confer status of issuing bank on the remitting bank in the event of a default in remitting the agreed sum to the designated party.”

I am of the firm view, that the decision of Ayoola, JCA [as he then was] was correct in the SBN v. Adegoke Motors Ltd. supra when he opined-

“Also, as in this case where the application to the Central Bank is by the buyer and such an application can only be processed by the banker, a collateral contract arises whereby the banker undertakes to process the application and the buyer undertakes to pay…. contract as has been described emerged, the aggrieved customer can sue and enforce that contract and claim damages where the banker has failed to exercise due care.”

The complaint of the appellant under this issue is also not made out. The respondent has the necessary locus standi. I resolve the issue against the appellant.

Issue No.4

This is essentially concerned with the finding of fact by the two lower courts. It is submitted that the Court of Appeal was in error to have refused to set aside the findings of facts made by the trial Judge. It is argued that had the learned trial Judge properly evaluated and appraised the evidence, he would find for the appellant. The learned counsel made a lengthy examination of the evidence and the numerous exhibits tendered and submitted that the claims of the respondent were false.

In my view, the matter before the trial court was very simple. The appellant as bankers agreed to process and transmit to the overseas importers the value of the goods already shipped and collected by the respondent. The respondent paid the naira equivalent of the foreign exchange involved. The appellant was negligent in processing for the foreign exchange. At page 779 of the records of appeal, the Court of Appeal made the following finding:-

“The plaintiff contracted the defendant to procure foreign exchange required to discharge its liability to the foreign suppliers. The foreign suppliers shipped the goods to the plaintiff a long time ago, but the plaintiff has not paid for the goods till today. Having failed to carry out the defendant says they are holding in trust. See testimony of DW1. The defendant has held on to the plaintiff’s money now for about 18 years. See also exhibit V wherein the defendant informs the overseas supplier that failure to remit the money was because the plaintiff had not paid the naira cover when infact the plaintiff had paid the money to the defendant, a fact admitted by the defendant but which he found convenient to deny to the overseas suppliers …. the plaintiff is entitled to a return or refund of his money to enable him pay his overseas suppliers and restore his badly damaged name.”

It is clear to me that the Court of Appeal was right to confirm the decision of the trial court because the appellant has woefully failed to produce any evidence of promissory note used to pay the overseas supplier or that any of the 331 bills was refinanced. At the oral hearing of this appeal when counsel for the respondent submitted that none of the bills of respondent was refinanced in any of the documents referred to by the appellant, when asked, the appellant counsel was unable to show this court where any of the bills was refinanced.

These fundamental and crucial findings of facts were concurrently made by the two lower courts and the appellant has failed to convince me that exceptional circumstances exist for me to disturb the findings. I have carefully considered the judgments of the two lower courts and their reasoning. I have also considered the argument of the learned counsel for both parties. I am convinced that the evidence before the trial court was properly appraised and evaluated. I have no reason to disturb the concurrent findings of facts made by the two lower courts. I am not persuaded that the findings are perverse. I accordingly resolve issue No.4 against the appellant.

Issue No.5

This is concerned with the question whether or not the respondent’s case should not have been dismissed by the lower courts having regard to the plea of the appellant that the evidence before the court that the claim of the respondent runs contradictory to public policy and act of state doctrine. The submission of the learned counsel for the appellant is that this case is linked to the Federal Government of obtaining debt relief and it is linked with the fundamental objective of the state. In reply, the learned counsel for the respondent argued that this is a new special defence raised for the first time in the Supreme Court and that there was no pleading to support it. I agree with the learned counsel for the respondent that this is a special defence which is raised for the first time in the Supreme Court without leave. Further more there is no evidence whatsoever to support the argument. I find no merit whatever in the argument of the appellant’s counsel. I resolve the issue against the appellant.

Issue 6

This is concerned with the award, assessment and quantum of damages. As mentioned above, the courts below awarded the respondent sums in various foreign currencies being the value of the goods supplied by the exporters and which sums were not transmitted to the exporters or the overseas suppliers. In this judgment, I have dealt at length with the issue of the liability of a banker under such a situation to refund the customer. Accordingly, I do not need to go into this again, suffice it to say that prayer No.2 stands as granted by both the trial court and the Court of Appeal.

The essence of the respondent’s claim which pervades the record and indeed is the whole basis of the action is the failure of the appellant to transmit money to the overseas suppliers for goods already imported into Nigeria. If that money was duly remitted to the suppliers, there would be no need for the case at all. The essence of damages in breach of contract cases is based on restitutio in integrum. That is the award of damages in a case of breach of contract is to restore the plaintiff to a position as if the contract has been performed. In my view, since the respondent in this case has succeeded in his prayer No.2, I do not think, it is proper to grant prayers 3 and 4. These are losses of anticipated profits (i) from 1985 – 1994 and (ii) from 1994 to date of judgment. The reason given was only because the foreign suppliers having not been paid refused to deliver goods to the respondent on credit. The respondent was duty bound to mitigate its losses and look for money elsewhere to resume trade with the usual suppliers or some other ones. I believe that the damages for loss of anticipated profits are too remote. The law imposes on a plaintiff in such a situation the duty to take reasonable steps to mitigate the loss consequence on the breach and debars from claiming for any remote damage which is due to his neglect or refusal to take other steps. The time factor is also very important, a plaintiff must as soon as he discovers that the defendant has breached his contractual obligation, he should immediately begin to mitigate the losses. In the instant case even if there is no remoteness of the damage, the respondent became aware of the breach when the suppliers were continuously demanding for payment. The respondent clearly could not just sit down after knowing the situation on the ground, it is duty bound to avoid the loss of expected profits by redeploying its resources elsewhere.

In any event since the money to be remitted to the foreign suppliers was not meant to be employed in their business, the failure to remit the money cannot affect and has no bearing on the refusal of the suppliers to sell goods on credit to the respondents. Indeed the respondents could deal with other suppliers if they so wished. I am accordingly of the view, that items 3 and 4 cannot be recovered against the appellants.

I accordingly set aside the award of N300 million as damages for loss of anticipated profits from 1985 to 1994 and the sum of N5 million naria per annum also as loss of anticipated profits from 1994 till date of judgment. Subject to the above, the appeal fails and is dismissed by me. I award the respondent N10,000.00.

SC.301/2003