I have carefully considered the issues under consideration. To my mind, there is no dispute as to the value of the goods stated in the Bill of Exchange sent to appellant for collection. It is US Dollars $186,990.00. The lower courts found and held that respondent paid that value to the appellant for onward transmission to the principal.To me, it does not matter whether the value of US Dollars $186,990.00 at the time was N128,198.28 which appellant claimed was the currency in which the payment was made or US Dollars $186,990.00. What matters is the fact that the value of the goods ordered as reflected on the Bill of Exchange Exhibit P4 sent to appellant for collection is US Dollars $186,990.00 and that value was collected by appellant. So when the respondent claimed as In paragraph 17(a) of the Further Amended Statement of Claim for:-
“Refund of the sum of US $186,990.00 or the equivalent in Naira, being money deposited by plaintiff in the defendant bank for remittance, to Goodfit Trading Company Limited”, he is simply asking for a refund of the value of $186,990.00 or its equivalent in naira simpliciter. It does not matter whether that value was paid for in US Dollars or Naira or Pounds Sterling or Ghana Cedis or whatever!!
I hold the view that the lower courts’ holding that payment of the value of the Bill of Exchange was in dollars is not perverse as same is supported by Exhibit 8 and the testimony of DWI under cross examination as follows:-
“Q. Look at Exhibit 8 was it your letter to your correspondent bank?
Q. What was the sum which you confirmed to the correspondent bank that was paid?
We confirmed to the correspondent bank that we collected the value of the goods shown on the Bill of Exchange.
Q. Read Exhibit D8.
A. Exhibit D8 read out?
Q. From the contents of the letter is it true that what you confirmed to the correspondent bank as paid was $186,990. 00?
A. Yes it was the amount we collected in local currency.
Q. Is there any mention of local currency in Exhibit D8?
A. There is no mention of local currency in Exhibit D8 “
I agree with the submission ‘of learned counsel for respondent that from the evidence on record, the relationship between the parties was defined by the sum of $186,990.00 which ought to also define the refund or restitution, by the appellant.
It is however settled law that foreign currency judgments are ‘within the general jurisdiction of the courts of law in Nigeria depending on the facts of the cases – See Koyo vs DBA (1997) 1 NWLR (pt. 481) 251 ; Broadline Enterprises vs Monthly Martime Corp. (1995) 9 NWLR (Pt. 417) 1 at 30.
The next sub-issue is whether it was the non production of the exchange control documents that prevented the remittance of the value of the goods collected by appellant to their principal, as contended by appellant. The lower courts found that it did not. I tend to agree with them. Evidence on record which was believed by the trial court and affirmed by the lower court is that the said documents are documents which would have been issued by the Department of Customs and Excise upon the clearance of the goods by the respondent but since the goods were seized and sold by public auction by the Department of Customs and Excise for being contraband, it became impossible to produce the said documents. In any event the contract of sale by description between the respondent and Goodfit Trading Company Limited had been repudiated to the knowledge of appellant following the supply/shipment of different goods from those ordered thereby aborting the need to remit the value of the goods to the correspondent bank for the benefit of the Goodfit Trading Company Limited. It would be absurd for one to think that appellant needs those documents to enable it make a refund of the money paid by respondent to him since it has not paid it over to its principal in the transaction. Or does it mean that without the production of those documents appellant is entitled to continue to keep the money? If so, for whom?
I therefore find no merit in issues 2 and 3 as argued together by appellant and consequently resolve same against appellant.
On issue no. 4, learned senior counsel for appellant submitted that the evaluation of the Court of Appeal prior to its verdict appears to have been guided by arguments canvassed in the respondent brief before that court, instead of the evidence on record; that it is settled law that address of counsel is no substitute for evidence. An instance of the error is said to be the statement of the court at pages 209 and 212 of the record regarding the applicability of the statute of limitation to the recovery of the value of the Bill of Exchange in the case, which counsel submitted are conjectures which materially affected the mind of the court and occasioned a miscarriage of justice; that the conclusion was not borne out of the pleadings or issues presented for determination before the court; that the conclusion was perverse and prejudicial to the appellant.
Learned counsel concludes by urging the court to re-evaluate the evidence, set aside the findings or conclusions complained of and allow the appeal.
On his part, learned senior counsel for the respondent restated the facts of the case and the evidence adduced at the trial. It is the contention of counsel that the transaction involved in this case was a D/P meaning “document against payment” which in effect means that documents will be delivered upon payment of the amount disclosed on the Bill of Exchange, as pleaded by both parties; that the action is for refund of money paid to appellant for a consideration that failed; that appellant refused to transmit the money to the principal neither did it pay it into a Nigerian bank as instructed by the principal; that exchange control documents are not needed for payment into Nigerian bank; that the issue of limitation law is a matter of law which the courts can take cognizance of as a party is not required to plead law, particularly as the period of limitation was not being set out as a defence to the action; that the Court of Appeal did evaluate Exhibit PW 4 and arrived at the conclusion as contained in the judgment.
It is settled law that evaluation of evidence is the primary responsibility of the trial court. Once there is proper evaluation of evidence by a lower court an appellate court has no business interfering unless the decision is perverse and has occasioned a miscarriage of justice, see Balogun vs Agbola (1974) 1 ALL NLR (Pt. 2) 66. Where, however, evaluation of evidence does not involve the credibility of witnesses but the complaint is against the non- evaluation or improper evaluation of evidence by the trial/lower court, an appellate court is in as good a position as the trial/lower court to do its own evaluation.
I have carefully gone through the record and the evidence adduced in support of the contending positions of the parties. It should be noted that the case of the respondent is simply a claim for the refund of a sum of $186,990.00 paid to appellant for the benefit of Goodfit Trading Company Limited for a consideration that failed.
Also to be noted is the fact that it is not the case of appellant that it paid the money over to Goodfit Trading Company Limited or the correspondent bank. In fact, evidence abound on record that the money in question is still in the possession of appellant.
These are some of the facts that ground the cause of action of the respondent, and there is evidence on record to support them.
It is clear from the record that the mention of statute of limitation in the judgment of the lower court which senior counsel for appellant considers to be speculative has nothing whatsoever to do with the case of the parties as pleaded and canvassed before the court. It is not relevant to the determination of the action as the same was a statement made by the way and has not resulted in any miscarriage of justice.
It is settled law that it is not every mistake made by; the lower court that will result in the judgment of that court being set aside on appeal. For the mistake to be considered as worthy of that effect, it must be relevant to the issue( s) in contention between the parties and substantial as to lead to a miscarriage of justice.
In the instant case, it is immaterial that the lower court stated that appellant disobeyed the instructions of the correspondent bank and withheld the fund paid by respondent as the fact remains that appellant has not paid or remitted the $186,990.00 dollars paid by respondent neither has it made a refund of same to the respondent who has demanded same on account of the failure of consideration for which the money was initially paid by the respondent.
I do not consider the fact that the lower court, by accepting the submission of counsel for one of the parties, it makes the conclusion arrived therein perverse. A perverse decision is one which ignores the evidence before the court and which results in or amounts to a miscarriage of justice see Atolagbe vs Shorun (1985) 1 NWLR (Pt. 2) 360 at 375.
The cross examination of DW1 on the contents of Exhibits 011 otherwise known as the “Bill History” established conclusively the case of respondent that the money paid by respondent is still in the custody of appellant.
The above, coupled with the telex message, Exhibit D7 also grounds the lower courts’ finding that the money is still with appellant. The said finding by the lower court in particular is not speculative at all. I therefore find no merit in issue 4 and resolve same against appellant.
In conclusion, it is obvious that the appeal is without merit and is consequently dismissed by me with costs which I assess and fix at N500,000.00 (five hundred thousand naira), in favour of the respondent.
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