Nature of the Action for Money Had and Received

CASE TITLE: ONUOHA & ANOR v. UNION BANK OF (NIG) PLC (2023) LPELR-61352(CA)
JUDGMENT DATE: 19TH SEPTEMBER, 2023
PRACTICE AREA: CONTRACT
LEAD JUDGMENT: JUMMAI HANNATU SANKEY, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:
This appeal borders on Action for Money Had and Received.

FACTS:
This appeal is against the decision of the High Court of Abia State sitting at High Court 1 Aba in Suit No. A/251/1990 on March 31, 2008.

A synopsis of the case of the Appellants at the trial Court is that the 1st Appellant is an importer who banked with the Respondent. In the course of his business, the Respondent sometime between the months of March and May 1983 received on his behalf four bills from his overseas trade partners (Exhibit C-C3); the Appellant promptly paid to the Respondent the sum of N180,829.76, being the exchange value of the sum of $258,570, being the value of the said bills, to be remitted to his overseas trading partners, which the Respondent received. It was the contention of the Appellants that these transactions took place between March and May 1983. It was supposed to have been concluded before December 1983, had the Respondent acted promptly and diligently. However, due to inexplicable delay and a breach of the duty of care by the Respondent, the money was not remitted to the Appellants’ overseas customers, thus occasioning the loss of his overseas customers.

In her defence, the Respondent had argued that upon receiving the sum of N180,829.76 from the Appellant to be remitted to their overseas partners, she had promptly sent same to the Central Bank of Nigeria for approval and allocation of Foreign exchange, but that unfortunately, on 31st December 1983, the military took over the government of Nigeria and suspended the allocation of Foreign Exchange for imports into the country. Subsequently, when the Military Government established the Second Tier Foreign Exchange Market and authorized foreign exchange, the exchange rate had gone up.

This meant that the sum remitted by the Appellant could no longer cover the four bills. This information was duly related to the Appellant. The Respondent then counter-claimed the sum of N50,968,60 being the indebtedness of the 1st Appellant arising from the Foreign Exchange shortfalls and commissions, further contending that the Appellant had entered into a legal mortgage with the Respondent Bank (Exhibit B) as collateral for the overdraft taken out by the 1st Appellant to settle his debts.

She therefore sought the following relief in her counterclaim:

(a) “A declaration that the defendant has an unfettered right of sale of the property in legal mortgage registered as No. 97 at page 97 in Volume 261 in the Owerri Land Registry.

(b) In the alternative, the sum of debt owing and

(i) Interest at the rate of 45% per annum from the date of this counterclaim to December 31, 1993.
(ii) Interest at the rate of 21% per annum as from January 1, 1994, to the date of judgment and
(iii) Interest at the rate of 10% per annum from the date of judgment till the judgment debt is liquidated.”

The trial Court, in delivering its judgment, held that the Appellants proved their case against the Respondent, and that the Respondent failed to prove its counter-claim. It then awarded general damages to the Appellants to the tune of N5,000,000.00 (five million naira only) for the loss of the 1st Appellant’s business customers due to the breach of contract and the duty of care by the Respondent.

Dissatisfied with the quantum of the judgment sum awarded, the Appellants filed this appeal.

ISSUE(S) FOR DETERMINATION:
The appeal was determined on the following issues:

“1. Whether the learned trial Judge in the Court below did not misdirect himself in law, when he failed to pronounce on the 1st and the 2nd arms of the Plaintiffs’ Claim after making a crucial finding of facts on same?

2. Whether the Appellants can on appeal, make a fresh claim different from their claim at the trial Court?”

DECISION/HELD:
In the final analysis, the appeal was found meritorious and was therefore allowed. In addition, the following further orders were made:

1. Claim (i) of the Appellants in their Statement of Claim before the lower Court is hereby granted.
2. Pre-Judgment interest is awarded at the rate of 10% on the sum of N180,829.76 from 1984 till the date of the delivery of the judgment by the lower Court.
3. Post-Judgment interest is awarded at the rate of 5% per annum on that sum from the date of the judgment until its final liquidation.

RATIOS:
• APPEAL – ISSUE(S) FOR DETERMINATION: Whether a respondent who has not cross-appealed or filed a respondent notice can raise issues not related to the grounds of appeal filed by the appellant
• CONTRACT – ACTION FOR MONEY HAD AND RECEIVED: Nature of the action for money had and received
• COURT – POWER OF COURT: Power of Court of Appeal to grant relief which the lower court could have granted
• DAMAGES – DOUBLE COMPENSATION: Whether the grant of a claim for refund of money and an award of general damages will amount to double compensation
• LATIN MAXIMS – “UBI JUS IBI REMEDIUM”: The principle of ubi jus ibi remedium

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