Unity Bank PLC V. Jahswill Onwudiwe & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment)

The 1st Respondent was at all material times to this action a customer of the Appellant Bank. The 1st Respondent had a younger brother who was a student in the United States of America. In the course of ordinary and normal banking relationship, the 1st Respondent approached the Appellant to help him source foreign exchange and transfer to his younger brother in the United States for payment of his school fees and for his upkeep.

The 1st Respondent made the naira equivalent available to the Appellant and paid the commission and other charges for the transaction.

The initial application made by the Appellant on behalf of the 1st Respondent was rejected by the 2nd Respondent on the grounds that the application was not supported by original documents. Upon the rejected application being returned, the application was made once again, this time with the original documents attached thereto. That was however the last that was heard of the application as the funds were neither sent to the 1st Respondent’s younger brother nor was the application returned to the 1st Respondent.

This state of affairs put the 1st Respondent’s younger brother in dire straits as he could not pay his school fees or have funds for his upkeep. Ultimately the 1st Respondent was able to transfer funds through another bank. Piqued by the way and manner in which 1st Respondent handled the transaction, the Appellant instituted proceedings against the 1st Respondent in Suit No. HCK/12/87 claiming specific performance of the contract and special and general damages for breach of contract.

In the processes filed by the Appellant, it claimed that it was the 2nd Respondent that did not approve the application made for the foreign exchange and furthermore that the application was misplaced by the 2nd Respondent. Consequent upon this disclosure the 1st Respondent applied and obtained an order of court joining the 2nd Respondent as a party to the action.

The 1st Respondent alleged negligence and breach of duty of care against the 2nd Respondent based on the alleged carelessness in the 2nd Respondent misplacing the application.

The 1st Respondent claimed the following reliefs against the Appellant and 2nd Respondent:

“Wherefore the Plaintiff claims as follows:

(i) Against the 1st defendant:-

(a) Specific performance of the said contract made in Kwale on 23rd April, 1982, between the plaintiff and the 1st defendant, or,

(b) N4,744.85 being money had and received for consideration that failed

AND

(ii) Against the defendants jointly and severally, N300,000.00 (Three Hundred Thousand Naira) being general and special damages for breach of contract on the footing of aggravated and/or exemplary.