➥ CASE SUMMARY OF:
A. M. O. Akinsanya V. United Bank For Africa Limited (SC.95/1985, 1986)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Jurisdiction;
Whether a court’s decision is ‘final’ or ‘interlocutory’.
➥ CASE FACT/HISTORY
A.M. O. Akinsanya trading in the name and style of Rocky Merchants, a company with headquarters in Lagos, having decided to import 10,000 metric tons of cement, struck a deal with a Swiss company, known as the Association for Economicatone Industrial Development in the Middle East and African Country (otherwise known as ASDECAMO, for short) and after the deal, he approached and contracted with the United Bank for Africa Ltd. to open a letter of credit for the transaction in favour of ASDECAMO. ASDECAMO will hereinafter in this judgment, be referred to as the Swiss Company or ASDECAMO indiscriminately.
The letter of credit was for $570,000 and the application for the letter of credit was tendered as Ex.B. The particulars tendered are that the letter of credit was to be “irrevocable/confirmed” and the amount $570,000 was to be available to the Swiss Bank at sight once” accompanied by the following documents …. combined Certificate of Origin, value and invoice “FORM C’ in triplicate including original.
The Appellant sued the Respondents in the High Court of Lagos State (Yaya Jinadu J.), who, after taking evidence, found against the Appellant. The Appellant appealed to the Court of Appeal and that Court, in a well considered judgment by Nnaemeka-Agu J.C.A., concurred with by Uthman Mohammed and Kutigi JJ.C.A. dismissed the Appellant’s appeal.
It is from this decision that the Appellant has finally appealed to this Court. In their judgment, the Court of Appeal raised for the first time the issue of jurisdiction of the trial Court.
From the facts of this case, which comply with the principles of law in International Documentary Credits, [see U.C.M. v. Royal Bank of Canada (supra)], that all parties to a documentary credit transaction deal in documents only, and not in the goods, what has happened herein, arises from a breach of agreement relating not to the carriage of the goods, that is the cement in this case, but to the conforming or non-conforming of the documents, produced by the Seller, the Swiss Company to the Swiss Bank, acting as agent of the Issuing Bank, the Respondent. What is at issue is whether or not the conditions stipulated in Ex. C have been prima facie conformed with by the Swiss Bank before payment of money to the Seller.
➥ ISSUE(S)
I. Whether the trial court had the jurisdiction to entertain the case?
II. Whether the decision of the Court of Appeal that the High Court of Lagos State has no jurisdiction to try the suit was an ‘interlocutory’ or a ‘final’ decision?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1:
[THE TRIAL COURT HAD JURISDICTION AS THIS CASE IS NOT AN ADMIRALTY MATTER
‘I have dwelt at length on the importance of this ex facie conformation of the documents, presented by the Seller, to the Confirming Bank. I am in complete agreement with Nnaemeka-Agu, J.C.A. when he said-
“In the instant case, the appellant forwarded his claim on the letter of credit which the respondents opened for him on his application. Although one of the documents with which, the credit was negotiated was the Bill of Lading, it did not convert the transaction, into a bill of lading transaction which would have succeeded in admiralty.” After all, the action is between the Buyer (Appellant) and the Issuing Bank, (Respondent). The Issuing Bank whose agent in regard to accepting and viewing the documents in question the Swiss Bank is, not would not ex obligatio be interested in whether the goods were ever shipped or that they ever arrived safely or whether or not the entire transaction was a conspiracy between the Swiss Company and the Appellant to defraud the country or anybody else of foreign exchange of currency. If the action had been between the Buyer and the Seller the terms of their agreement might (and I would not put it higher) probably involve both parties’ interest in the carriage of the goods by sea, depending upon the terms of their agreement that might result in admiralty matter. However, all that would be academic, as the present action is between the buyer and the Issuing Bank. The Lagos High Court has jurisdiction and the submission by Chief Williams, on this point, fails.’]
.
.
↪️ ISSUE 2:
[IF A JUDGEMENT DOES NOT FINALLY DISPOSE THE RIGHTS OF THE PARTIES THEN IT IS NOT A FINAL DECISION
‘Subsequently, in Bozson v. Altricham U.D.C. (1903) 1 K.B. 547 at 548 Lord Alverstone C.J. advanced another test as follows:-
“It seems to me the real test for determining this question ought to be: Does the judgment or order, as made, finally dispose of the rights of the parties If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”
For the avoidance of any doubt, I would like to emphasize that, in my view, the test formulated in Bozson case which has been adopted since Blay v. Solomon (supra) and Ude v. Agu (supra) is still the test to be applied in determining whether a court’s decision is “final” or “interlocutory”. I would apply that test for the resolution of the issue in the case in hand.
Now, in the case in hand the Court of Appeal by majority held the trial court had no jurisdiction to entertain the suit. Notwithstanding the determination by the Court of Appeal of the appeal on the merits which is only a matter of tactical practice for speedy administration of justice in case its decision of jurisdiction turns out to be wrong, the decision on the jurisdiction as far as the Court of Appeal was concerned is final. That Court had finally disposed of the appeal before it and there was nothing left.
For the foregoing reasons, I hold the decision of the Court of Appeal on the issue of jurisdiction to be “final”. Consequently, the appeal is properly before the court and no leave is required.’]
.
.
.
✓ DECISION:
‘The Appellant had explained how he came to sign Ex. J. Even if the explanation is accepted, I do not think a decision on this point is necessary, any more, having regard to all my findings I have earlier made in this case for the determination of this appeal. The Respondent does not need this point to succeed.
The Appellant having failed in all the grounds of appeal already discussed, and the Respondent having failed in his appeal on jurisdiction, both appeals fail, and they must be, and they are hereby dismissed. There will be no order as to Costs.’
➥ FURTHER DICTA:
⦿ THE PACE AT WHICH ENGLISH LAWS DEVELOP IS FAR FASTER THAN THAT OF OURS
Apart from the fact that the House of Lords decisions are merely of persuasive authority, the desire to have the same common law with England though ideal cannot be achieved. The pace at which English law develops is by far faster than that at which ours develops. One only needs to look at the statutes of general application in England as at 1st January, 1900, which are still our laws, to see how far the English law has left ours behind. Any hope of achieving uniformity with England is now illusion. As put by Rupert Cross at p.22 of the 3rd Edition of his book – Precedent in English Law; “The desirability of having the same common law throughout the Commonwealth is not as self-evident as it is sometimes made to appear. Much depends on the branch of the law concerned. In commercial matters, for example, where members of the different Commonwealth countries are liable to be affected by the same rule, there is much to be said for uniformity; but the demand for uniformity in other spheres may militate against useful developments. For historical reasons, Australian and Canadian Judges may, faute de mieux, have to start their thinking with English law, but there is no obvious merit in their binding themselves to adopt the English solution. The first answer to a legal problem is not necessarily the right one, and each of two answers may be equally meritorious.” — Uwais JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Kayode Eso J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
