First Bank (Nig) PLC V. Chief Charles Orakwue Azifuaku (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment)

The 1st respondent is the director of the 2nd respondent. The 3rd respondent is an employee of the 2nd respondent. The respondents as the plaintiffs at the Court below instituted suit no. O/203/99 at High Court of Anambra State against the appellant herein and claimed the sum of Fifty Six Million, Eight Hundred and Forty-four thousand Four Hundred and Sixty Naira (N56,844,460:00) as special and general damages for alleged negligent action of the appellant.

The summary of the respondents’ case at the Court below is that they had a long standing relationship with the appellant as a result of which the respondents developed confidence in the defendant’s ability to handle their remittances regarding business dealings with their associates in Hong-Kong. In the course of a transaction with their business associate in Hong-Kong, the 2nd respondent remitted a sum of twelve thousand US dollars (USD 12, 000, 00) to the 3rd respondent’s account with Hang Seng Bank in Hong-Kong on 13/8/98 through the appellant.

On 19/9/98, the 3rd respondent arrived Hong-Kong for the purpose of transacting business on behalf of the 2nd respondent but could not collect the sum of USD12, 000:00 (Twelve thousand dollars) remitted to his account through the appellant. The Bank from which the remitted money was to be collected in its reply to a letter written by the 1st respondent stated that the 3rd respondent’s name was wrongly spelt. The money was eventually paid into the 3rd respondent’s account in Hong-Kong on 13/10/98.

According to the respondents, the 3rd respondent and Mr Ambrose Ilonze incurred a lot of expenses on hotel bills, feeding and communication expenses. The defendant filed a defence to the claim and denied the allegation of negligence in handling the remittance. After hearing both parties, the Court below in a considered judgment delivered on 29th June, 2006 entered judgment against the appellant as follows:

“In the instant case because of the mistake in the name of the 3rd plaintiff the money remitted to him could not be received until after 2 months; yet this money is for a business transaction and payment of goods. There was a lot of time wasting and receiving the money remitted for payment of goods booked after 2 months was not within a reasonable time. It is not even reasonable time even if it was received within one month for such a transaction. The plaintiffs in the circumstances have suffered losses and damages.

Having evaluated the evidence before me and on a very careful review of the evidence adduced in this case the plaintiffs have failed to prove by strict evidence the Special damage claimed. The claim for the Special damages therefore fails.

On the issue of general damages there are sufficient, credible and satisfactory evidence to show that the plaintiffs incurred losses and damages as a result of the negligent acts of the defendant.

On the totality of the evidence before me and putting same on the imaginary scale by way of evaluation base on credible, convincing and positive evidence in support of this case, the scale tilts in favour of the plaintiffs in the long run. See OLALEYE v. ADEJUMO (2005) 10 NWLR (PT. 933) PAGE 429 @ 437. In the circumstances the plaintiffs’ case on General Damages against the defendant succeeds. Accordingly the Plaintiffs are awarded N20,000,000.00 (Twenty Million Naira) as general damages against the defendant. A cost of N30,000.00 (Thirty thousand Naira) is awarded to the plaintiffs inclusive of their out of pocket expenses.”

The appellant is aggrieved by the judgment and has appealed to this Court on seven (7) grounds. The grounds of appeal as contained in the Amended Notice and Grounds of Appeal filed on 10th December, 2009 are as follows:

GROUND ONE: ERROR IN LAW

The learned trial judge erred in law in awarding the Plaintiffs general damages of N20 million.

GROUND TWO: ERROR IN LAW

The learned trial judge erred in law in holding that the nature of business between the Plaintiffs/Respondents and the Defendant/Appellant was for $171,000.00 (One Hundred and Seventy-One Thousand United States Dollars).