⦿ CASE SUMMARY OF:
First Bank Of Nigeria Plc v. Alexander N. Ozokwere (2013) – SC
– Sale by description;
– Bill of Exchange;
– Money had and received;
First Bank Of Nigeria Plc
Alexander N. Ozokwere
⦿ LEAD JUDGEMENT DELIVERED BY:
Walter Nkanu Onnoghen, JSC
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– A. BEN ANACHEBE, SAN;
* FOR THE RESPONDENT
– DR ONYECHI IKPEAZU, SAN;
⦿ FACT (as relating to the issues)
Sometime in 1982, the deceased brother of the respondent by name CYPRIAN OZOKWERE placed an order for the supply of motor spare parts valued at $186,990.00 from Goodfit Trading Company Limited of Hong Kong payable under a D/P i.e Document against Payment, contract. It was agreed that payment for the said goods would be made through appellant. The transaction was for sale of the goods by description. It is the case of the respondent that Goodfit Trading Company Limited shipped and delivered goods of different description, namely, ladies wears, in breach of its contract with the respondent.
On or about 18th February, 1983, Goodfit Trading Company Limited delivered to the respondent through appellant Bill of Lading (which is Exhibit P3), and Bill of Exchange No.DP/GF/S037/82 dated 11th December, 1982 together with the “Remittance for collection and/or Acceptance Order”, Exhibit P4 and P4A, as a result of which the respondent paid a total price of the goods of $186,990.00 as stated in the invoice, to appellant. The relevant documents indicated that the goods ordered were FEBI Motor Spare Parts. Rather than ship/supply the goods so ordered, Goodfit Trading Company Limited shipped contraband goods which were confiscated and sold by the Department of Customs and Excise. Appellant was duly notified. The respondent then demanded a refund of the sum paid to appellant.
It is the case of appellant that it received a letter of instruction from a correspondent bank, Hong Kong and Shanghai Banking Corporation of 245 Lai Chi Kok Road, Shamshuipo Kowloon, Hong Kong, together with an attached Bill of Exchange requesting it to collect the value disclosed in the Bill of Exchange; the respondent paid the sum of N128,198.28k the then value of $186,990.00 as a result of which appellant become obligated, under international trading customs and letter of instruction to transfer the money through the correspondent bank, and that the respondent was under obligation to deliver to the appellant customs Bill of Entry, Tally Sheet, Customs and Excise Payment Schedule, Tax Clearance Certificate and Form M to facilitate the transfer of the funds which the respondent failed to do.
In paragraph 17(a) and (b) of the Further Amended Statement of Claim, the plaintiff/respondent claimed against the appellant/defendant as follows: – “(a) 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. (b) Interest at the current rate of interest per annum on the total sum of US.$186,990.00 or the equivalent in Naira from the 18th February, 1983 till date of judgment in this suit and thereafter at 5% per annum until the whole amount is fully paid”
The judgment of the trial court on the above claims is in the following terms: “On the whole, the plaintiffs action succeeds, I give judgment in favour of the plaintiff against the defendant for the sum of US$186,990.00. There is no evidence as to the rate of interest claimed. The court cannot act on mere conjecture and is not allowed to speculate as to what the prevailing rate of interest would be. This head of claim fails and it is hereby struck out”.
The Appellant appealed to the Court of Appeal which dismissed the Appeal, the Appellant has herein appealed to this Court.
1. Whether the Court of Appeal was right in finding the appellant liable to refund the respondent the sum of $186,990.00 paid on a bill of exchange and received by appellant on behalf of Goodfit Trading Company for a consideration that totally failed.
2. Whether available pleadings/evidence disclosed that the respondent on record deposited US Dollar Currency with appellant bank as specifically claimed in his principal relief to warrant entry of judgment for US$186,990.00 which the Court of Appeal upheld as “money had and received”.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED with #500,000]
1. FOR ISSUE 1, THE Supreme Court GAVE JUDGEMENT AGAINST THE APPELLANT AND IN FAVOUR OF THE RESPONDENT.
i. It is in evidence which evidence is also not disputed that the purchase price of $186,990.00 paid by the respondent for the sale of Motor Spare Parts by description, has not been remitted to the correspondent bank for the benefit of the drawer due to the failure of the goods supplied by Goodfit Trading Company Limited to meet the description of the goods ordered. Also not in dispute is the fact that appellant was, following the failure to remit the sum to the correspondent bank for the benefit of the drawer, instructed to pay the naira equivalent of the money into a specific account with a Nigerian bank in Nigeria which appellant also failed to comply with. In Bowstead on Agency, 12th Ed. Article 124 thereof, the learned author stated as follows:- “Where money is paid to an agent for the use of his principal, and the circumstances of the case are such that the person paying the money is entitled to recover it back, the agent is personally liable to repay such money in the following cases namely:- (a) … (b) … (c) where the money is paid under a mistake of fact, or under duress, or in consequence of some fraud or wrongful act, and repayment is demanded of the agent, or notice is given to him of the intention of the payer to demand payment, before he has in good faith said the money over to, or otherwise dealt to his detriment with the principal in belief that the payment was a good and valid payment”.
It is not also disputed that respondent made demand on the sum paid for the goods prior to any payment of the proceeds to the principal following the discovery of the defect in the goods supplied. In the circumstances of this case, it is very unconscionable to allow the appellant to continue to hold unto the money, which no one, except respondent, has laid claim to, on a technical ground that appellant was not a privy to the contract between respondent and Goodfit Trading Company Limited and as such the equitable principles of “money had and received” does not apply to compel appellant to repay the money paid by respondent to appellant for a consideration which has totally failed. The principle is an equitable remedy which is the conscience of the law. On what basis should appellant be allowed to continue to unjustly enrich itself at the expense of the respondent who made the deposit for goods he never received? I hold the view that this is a species of action where the form does not really matter but the substance.
2. FOR ISSUE 2, THE SUPREME COURT GAVE JUDGEMENT AGAINST THE APPELLANT AND IN FAVOUR OF THE RESPONDENT.
i. 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 DW1 under cross examination.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
It is however accepted by both parties that a cause of action for money had and received for total failure of consideration is founded on the equitable doctrine of quantum meruit which principle is designed to eliminate the concept of unjust enrichment. – Onnoghen, JSC. FBN v. Ozokwere (2013)
On the sub-issue of non-joinder of Goodfit Trading Company Limited in the action, it is settled law that there is a distinction between the desire of making a person a party to a suit and the necessity of making him a party. For a person to be a party to an action, he must be a necessary party so as to be bound by the decision in the proceedings – See Peenok vs Hotel Presidential (1983) 4 NCLR 122. If the court can decide the claim of the plaintiff with the parties before it, it will proceed to do just that irrespective of the fact that the relief sought in the action might affect a person not joined see Settlement Corporation (1969) 1 WLR 1664; Green vs Green (1987) 7 SCNJ 255 at 269. In the instant case, appellant received money from the respondent for a consideration which failed and refused even to comply with the instructions of the party on whose behalf it received same and still holds unto the money. It is very clear in the circumstances that only appellant is a necessary party in an action instituted by the respondent to claim the money paid in the circumstances of this case. – Onnoghen, JSC. FBN v. Ozokwere (2013)
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. – Onnoghen, JSC. FBN v. Ozokwere (2013)
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. – Onnoghen, JSC. FBN v. Ozokwere (2013)
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. – Onnoghen, JSC. FBN v. Ozokwere (2013)
A perverse decision is one which ignores the evidence before the court and which results in or amounts to a miscarriage of justice. – Onnoghen, JSC. FBN v. Ozokwere (2013)
A claim of this nature for “money had and received” is in the nature of an equitable remedy to discourage unjust enrichment. It is to prevent a defendant (such as the appellant herein) from holding on to money, which has come into his possession, which it is against conscience that he should keep. – Kekere-Ekun, JSC. FBN v. Ozokwere (2013)