ABUSOMWAN V. MERCANTILE BANK OF NIG. LTD.

• Pages: 878-891

878

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NIGERIAN SUPREME COURT CASES

[1987] 2 N.S.C.C.

errors in pleadings which could be corrected in good time should be allowed to

be corrected; so are omissions. They should be corrected at the earliest time they

are discovered so that the other side will have ample opportunity to counter that

amendment if it is so desired. The golden rule is that if the other side will be

embarassed or placed in serious jeopardy as to amount to injustice, amendment

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of pleadings should not be allowed.

In the instant case the amendment carried out in the Court of Appeal did noth-

ing more than to crystalize all the issues the parties contended in the trial Court

and those issues are relevant to a just decision in the case. That is to say, the dis-

pute between the parties can only be settled by having all those issues brought into

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the fore in the amendment in juxtaposition with those actually pleaded in that Court

and the evidence adduced on them brought before the Court. Having had the pri-

vilege of a preview of the lead judgment by my learned brother, Oputa, J.S.C.

and with the comments above on Ground 3, I agree that this appeal lacks merit. I

also dismiss it. I make the same consequential orders as made by him in that judg-

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ment.

Appeal dismissed.

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ABUSOMWAN V. MERCANTILE BANK OF NIG.

LTD.

CHIEF PATRICK A. ABUSOMWAN

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APPELLANT

V

MERCANTILE BANK

OF NIGERIA LTD.

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RESPONDENT

SUIT NO. SC 7

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/

1

986

SUPREME COURT OF NIGERIA

ESO,

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J.S.C.

ANIAGOLU,



J.S.C.

KAZEEM,

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J.S.C.

KARIBI-WHYTE,

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J.S.C.

BELGORE,

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J.S.C.

19th June, 1987

Appeals - Findings of fact where trial court fails to evaluate evidence and make

correct findings - Findings of fact peculiarly within province of trial court.

Agency - Disclosed principal - Whether he may be sited or sue on contract.

Tort - Negligence - Failure of banker to adhere to instructions on banker's

guarantee - Effect.

Contracts - Tortious liability for breach of contract - Old view to the contrary

now discarded.

ISSUE:

1. Whether an action in tort for negligence can arise from the breach of a contract.

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