Patrick Izuagbe Okolo & Anor. V.union Bank Of Nigeria Limited (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

This appeal concerns bank/customer relationship. The appellants are the customers. The respondent is the bank. The case of the appellants is that the respondent failed to comply with foreign exchange transactions involving the transfer abroad timeously of the foreign exchange or currency equivalent of N239, 143 to cover cost of goods supplied to them by their overseas customers, thus causing business loss to the appellants. The appellants alleged negligence on the part of the respondent.

The appellants asked for the following reliefs:

“(a) An order for account of all monies paid into and debited against 2nd plaintiff’s account or account with the defendant from 1986 till date and reversal of all wrongful and illegal debits made by the defendant on the said accounts from 1986 till date and payment over to the 2nd plaintiff of all monies excessively debited with interest at prevent (sic) long bank rate.

(b) An order of perpetual injunction restraining the defendant by herself, her servants and/or agents or otherwise howsoever from auctioning, selling, disposing of or in any way interfering with 1st plaintiff’s title to possession over the property lying and situate at plot 16 Kodesoh layout, Effurun.

(c) An order for the immediate refund of the sum of E5,155.35 (British Pound) and/or its current Naira equivalent amount by the defendant to the plaintiff as directed at paragraph 16d(i) hereof. (d) The sum of N1,000,000.00 being damages suffered by the plaintiffs.

(e) The sum of E5,155.35 (or its current equivalent in Naira) including the current bank interest rate of 30%, which said sum the defendant have failed, refused or neglected to refund to plaintiffs despite repeated demands.”

The respondent did not accept liability. It rather counter-claimed as follows:

“WHEREFORE the defendant seeks the order of this honourable court that the mortgage registered as No. 42 at page 42 in Volume 523 at the Lands Registry in the office in Benin City be enforced against the plaintiffs by for-enclosure and the delivery of possession to the defendant by the plaintiff the mortgaged property registered as No. 45 at page 45 in Volume 273 at the Lands Registry in the office at Benin City in accordance with terms of the said mortgage. Defendant shall rely on its letters dated 29/3/89 and 14/4/89 at the trial.”

After hearing evidence, the learned trial Judge, Bozimo J., (as she then was) delivered judgment. Each of the parties was not satisfied with the judgment. The appellants appealed. The respondent also cross-appealed. At the Court of Appeal, that court dismissed the appeal and allowed the cross-appeal in part. While the appellants have come on appeal to this court, the respondent has also come to this court on a cross-appeal. Briefs were filed and duly exchanged. Mr. Okiemute Odje, counsel for the appellants, was absent when the appeal was argued. By the rules of this court, the brief of the appellants and the reply brief were regarded as argued.

In the respondent’s brief, learned Senior Advocate, Chief E.L. Akpofure, raised a preliminary objection. Learned counsel for the appellants, Mr. Okiemute Odje, in his appellants reply brief has answered the preliminary objection raised by the respondent. I think I should take the preliminary objection first.

At paragraph 3 of the respondent’s brief, Chief Akpofure raised the preliminary objection in the following terms:

“The respondent shall at the hearing of this appeal raise preliminary objection with the leave of this honourable court in accordance with the rules of this honourable court that this appeal is incompetent on the following ground.

‘that the conditions of appeal were not perfected within the stipulated period and no leave was sought by the appellants herein. This goes to the entire root and competence of this appeal as same borders on jurisdiction’.”