Chartered Bank Limited V. First African Trust Bank Limited & Ors. (2005)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
This is an appeal which was filed by the Plaintiff against the judgment of the Federal High Court, Lagos delivered on 3/6/99 by Justice T.A. Odunowo in Suit No. FHC/L/CS/86/94 dismissing the suit against the 1st Defendant. By its Particulars of Claim dated 26th January, 1994 which were repeated in paragraph 21(i – iii) of the Statement of Claim the Plaintiff claimed against the Defendants jointly and severally as follows:
a. The sum of N5,242,507.73 being money had and received by the Defendants from the Plaintiff without lawful justification, which the Defendants have failed, refused and/or neglected to pay despite repeated demands by the Plaintiff.
b. Interest on the said sum of N5,242,507.73 at the rate of 85% per annum from in June 1993 to 31st December, 1993 and at 21% per annum from 1st January, 1994 until the whole debt is liquidated.
c. Further reliefs.
The Plaintiff and the 1st Defendant filed and exchanged pleadings with the 15th Defendant amending its Statement of Defence. The 2nd Defendant did not file any Statement of Defence despite the fact that it was served with the Writ and Statement of Claim and did not participate in the proceedings. The Plaintiff called one witness who testified on its behalf while the 1st Defendant called two witnesses. Several exhibits were tendered. Judgment was entered in favour of the Plaintiff against the 2nd Defendant as per paragraph 21 of the Statement of Claim dated 18th May, 1994 but the claim against the 1st Defendant was dismissed. Aggrieved by this decision the Plaintiff filed his Notice of Appeal against the two Defendants dated 2/9/99 on 14/9/99 but later withdrew the appeal against the 2nd Defendant whose name was struck out of the appeal. An order was granted on 12/6/2003 to substitute Eagle Bank Limited for First African Trust Bank Limited because the name of 1st Defendant had been changed in the course of the proceedings.
Three grounds of appeal were filed along with the Notice of Appeal from which the Appellant formulated the following two issues for determination in paragraphs 3.1.1 & 3.1.2 of the Appellant’s brief as follows:
“3.1.1 Whether negligence is a relevant and material factor that will disentitle a claimant from recovering money paid under a mistake of fact in an action for money had and received.
3.1.2. Whether the Respondent is entitled to retain the sum of N3,5000,000.00 paid to it by the Appellant under a mistake of fact in the entire circumstances of the case.”
The Respondent also formulated two issues for determination.
The issues distilled by the learned Counsel for the Respondent which he contends represents the thrust of the facts upon which issues were joined in the court below are:
“3.1.1. Whether the Respondent could be held liable in an action for money had and received on an action involving overdraft facilities by the Appellant to a party other than the Respondent.
3.1.2. Whether the Respondent as collecting Banker could be held liable in an action for money had and received when the title in the funds had been credited to the account of a third party (sued as 2nd defendant).”
The Appellant based its claim for money had and received on the principles of equity contending that the Respondent cannot in good conscience hold onto money which had come into its possession by a mistake which the Appellant made when it wanted to return the cheque (Exhibit “A”) to the Respondent the presenting bank, but instead mistakenly sent the cheque to First Bank of Nigeria Plc. and submitted that the Respondent is not entitled to retain the sum of N3,500,000.00 paid to it by the Appellant under a mistake of fact as the corporate name of the Respondent at the material time started with “First” and Richbanc did not have enough funds in its account to cover the value of the cheque. He submitted that the Appellant has satisfied the conditions to entitle it to recover its money in a claim for money had and received under a mistake.
Learned Counsel also argued that the evidence does not support the finding of the lower court that the appellant granted an “involuntary overdraft” to Richbanc. He said that the position might have been different if the Respondent had transferred the value of the cheque to a third party on the instruction of Richbanc. Since the cheque was drawn by Richbanc in favour of itself and so it was the beneficiary of the cheque, the proceeds of the cheque were received into the account of Richbanc with the Respondent and the Respondent thereupon appropriated the proceeds of the cheque for itself, in such circumstances, the Respondent is not entitled to retain the money. Learned Counsel for the Respondent raised a preliminary objection against the competency of the grounds of appeal and submitted that ground 1 which alleges error in law and misdirection is an obvious incongruity since a ground of appeal cannot allege an error in law and a misdirection at the same time and relied on the observation which was made by Nnaemeka-Agu J.S.C. in NWADIKE V. IBEKWE (1987) 4 NWLR 718 at 744-748. He also submitted that grounds 2 ground 3 involve a mixture of law and fact which require the leave of the court before they can become competent grounds and since the leave of court was not sought nor granted, the grounds are incompetent and ought to be discountenanced. The following cases were cited to support the contention namely:
AQUA LIMITED V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR 622; METAL CONSTRUCTION CO. LTD V. MIGLIORE (1990) 2 SCNJ 20 at 26.
Making submissions on the merit of the appeal, learned counsel for the Respondent contended that the action leading to the instant appeal is based on a Banker/Customer relationship between the Appellant and the 2nd Defendant on one hand and the Respondent and the 2nd Defendant on the other. Making further submissions learned counsel for the Respondent stated that the Appellant admitted both in the pleadings and on the evidence of Plaintiffs witness that it granted overdraft facilities to the 2nd Defendant in the sum claimed, in the absence that the Respondent did not stand as a surety or guarantor to the 2nd Defendant, it cannot be held liable. The learned trial Judge made findings of fact which were damaging to the Appellant on which there is no appeal. Learned Counsel submitted that the learned trial Judge was right in dismissing the Appellant’s case since he was not impressed that the Appellant had made out a case for an action founded on money had and received. Finally he argued that negligence on the part of the Appellant did not constitute the gravamen of the court’s decision and the reference by the learned trial Judge to the issue of negligence was merely orbiter and so is not material to the correctness of the decision and urged the court to dismiss the appeal.
The Appellant filed a Reply Brief in which he argued that ground 1 is a ground of law and even though the particulars are titled “Particulars of Misdirection”, a reading of the said Particulars will reveal clearly that they are Particulars of error and submitted that the description given to a ground of appeal is not conclusive on whether it is a ground of law or a ground of fact or indeed mixed law and fact. In order for the court to determine the category to which a ground of appeal relates, the ground has to be read and examined together with the particulars supplied and relied on ADEROUNMU V. OLOWU (2000) 4 NWLR (Pt. 652) 253 and THOR LIMITED V. FIRST CITY MERCHANT BANK LIMITED (1977) 1 NWLR (Pt.479) 35. He submitted that the description of the particulars contained in ground 1 of the Notice of Appeal as “Particulars of Misdirection” is a typographical error or a mere mis-description which does not affect the validity or competence of the ground and that once a ground of appeal is not vague and gives sufficient notice of the precise nature of the Appellant’s complaint, such ground will not be rendered incompetent merely because it alleges error in law and misdirection in fact. See: ADEROUNMU V. OLOWU supra; HAMBER V. HUEZE (2001) 4 NWLR (Pt. 703) 372 and NTEGWUIJA V. IKURU (1998) 10 NWLR (Pt. 569) 267.
On the second objection that grounds 2 and 3 are grounds of mixed law and fact for which the Appellant requires leave, learned counsel submitted that this contention is misconceived and without any legal basis since the appeal is against a final judgment and not against an interlocutory decision and by virtue of Section 241(1)(e) of the 1999 Constitution, the appeal lies to the Court of Appeal as of right from the final decision in any civil or criminal proceedings before the Federal High Court or High Court of a State sitting at first instance.
The grounds of appeal which the Respondent alleges are incompetent are as follows:
“1. The learned trial Judge erred in law when he held that for a mistake to avail, the person making the mistake must live up to the standard of a reasonable banker, and the onus of proof of absence of negligence also lies on the plaintiff.
PARTICULARS OF MISDIRECTION
i. the right to claim the return of money had and received without lawful justification is not dependent on the categories of mistake of fact made by the claimant.
ii. The fact of negligence is irrelevant to the consideration of the Plaintiff in a claim for money had and received.
- The learned trial Judge erred in law by holding that the mistaken return of the cheque to First Bank Plc instead of the 1st Defendant on the last date allowed under the clearing House Rules is inconsistent with genuine mistake.
PARTICULARS OF ERROR
i. There cannot be a reasonable mistake.
ii. Negligence and mistake may avail the Plaintiff in an action for money had and received.
- The learned trial Judge erred in law by holding that the granting of an involuntary overdraft to the 2nd Defendant takes the matter out of the realms of money had and received.
PARTICULARS OF ERROR
i. There is uncontroverted evidence that the amount credited to the account of the 2nd Defendant was utilized by the 1st Defendant to reduce the debt owed the 1st Defendant on that account.
ii. There is evidence that Exhibit A was noted as dishonoured in the records of the Plaintiffs head office (within the Clearing House Rules) on 4th June 1993 and that the 1st Defendant was duly informed on the next working day 7th June, 1993 by Exhibit E.
iii. There is no evidence that the 1st Defendant has irrevocably altered its position with regard to Exhibit “A”. Rather there is evidence by the 1st Defendant’s witness that 1st Defendant did not benefit from the N3.5 million cheque (Exhibit A) created to the account of the 2nd Defendant.
iv. There is uncontroverted evidence that the 2nd Defendant never withdrew any money from the said account after its account with the 1st Defendant was credited with the proceeds of Exhibit A”
I have critically examined the grounds of appeal reproduced above and I am in complete agreement with the submissions made by learned counsel for the Appellant in his Reply Brief that –
(a) the Particulars of Misdirection given in ground 1 is a mis-description which does not effect the validity or competence of the ground. The ground is not vague and it reveals the nature of the complaint which the Appellant is making and the title of “Particulars of Misdirection” is at best a typographical error which cannot render the ground incompetent. The prime purpose of the rules of appellate procedure that the appellant shall file an notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal; and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information to the other side, of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise in the appeal. What is important in a ground of appeal, and the test the court should apply, is whether or not an impugned ground shows clearly what is complained of as error in law and what is complained of as misdirection or as the case may be error of fact. See NTEOGWUIJA V. IKURU supra at p.310 ADEROUNMU V. OLOWU supra at page 266; TRANS ATLANTIC SHIPPING AGENCY LIMITED V. I.A.S CARGO AIRLINES (NIG) LTD (1991) 7 NWLR (Pt. 202) 156; OLANREWAJU V. BANK OF THE NORTH LIMITED (1990) 8 NWLR (Pt. 364) 622. The said ground 1 is competent and the preliminary objection raised on its competency is hereby overruled. The objection to grounds 2 and 3 requiring the leave of court to raise them is misconceived. I entirely agree with the submission made by learned counsel for the Appellant that since this is an appeal from the final judgment of the High Court sitting at first instance any appeal even on mixed law and fact or purely on fact is as of right by virtue of Section 241(1) (a) of the 1999 Constitution and so leave is not required before such grounds can be filed. The preliminary objection to the grounds of appeal fails and I declare all the grounds filed as competent.
The Plaintiff/Appellant’s claim is for money had and received and this specie of action is founded upon principles of equity where the defendant cannot in good conscience hold onto money which has come into his possession and this has been captured vividly in the Statement of Lord Wright in the case of FIBROSA SPOLKA AKCJNA V. FAIRBAIRN LAWSON COMBE BARBOUR LIMITED (1943) A.C. 32 where he explained the purpose of the claim at page 61 thus:
“The claim was for money paid for a consideration which had failed. It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep.”
It is necessary to state the facts with a view to determining where the principles for the recovery of money had and received would apply. The facts may be stated briefly as follows:
The 2nd Defendant, Richbanc was mutual customer of the Appellant and the Respondent Banks. On or about 28th April 1993, Richbanc paid into its account with the Respondent, a cheque in the sum of N3,500,000.00 drawn on its account with the Appellant Bank. The cheque was sent for collection through the clearing system of the Respondent Bank. When the cheque was received by the Appellant through the clearing system it was returned with an endorsement “DAR” (meaning Drawer’s Attention Required) on 3rd May, 1993. The 1st Defendant re-presented the cheque on 28th May, 1993. At the material time the 2nd Defendant/drawer’s account still lacked sufficient funds and on 4th June, 1993, the Plaintiff mistakenly sent the cheque to First Bank of Nigeria Plc instead of First African Trust Bank Limited which was the name of the 1st Defendant until the name was changed to Eagle Bank Limited. On 7th June, 1993, First Bank Plc returned the cheque to the Plaintiff which was the last clearing day. The Plaintiff then sent the cheque back to the Defendant with a covering letter that they were not paying the cheque but the 1st Defendant did not accept the cheque on the pretext that it was returned to them late and that they had given value for the cheque which the beneficiary had withdrawn cash for the total amount from the account. The Plaintiff later found that the 1st Defendant used the proceeds of the cheque to cover credit facilities which the 1st Defendant had granted to the 2nd Defendant. In other words, the 1st Defendant merely credited the account of the 2nd Defendant with the value of the cheque which the 2nd Defendant maintained with them which reduced the indebtedness of the 2nd Defendant to the 1st Defendant.
Learned Counsel for the Appellant advanced the argument that the courts in England have developed the principles in a line of authorities that will entitle a plaintiff to recover for money had and received under a mistake and enumerated the conditions to be met as follows:
- The mistake must be one of fact not one of law.
- The mistake must have caused the payment.
- The mistake must have been that of the payer, but not necessarily that of the payee and submitted that if money is paid under a mistake of fact and is redemanded from the person who received it before his position has been altered to his disadvantage, the money must be repaid in whatever character it was received.
The specie of the claim according to learned Counsel was examined by the Supreme Court in the case of AEROFLOT SOVEIT AIRLINES V. UNITED BANK OF AFRICA LTD (1986) 3 NWLR (Pt. 24) 188. The facts of that case are as follows:
The Appellants were at all material times the customers of the Respondent Bank, and had an account with them. Appellants also in the normal course of business paid money into the Respondent’s Bank in a teller provided by the Respondent’s Bank. As evidence of acknowledgement of each money so paid, Respondent’s Bank stamped and initialed the teller through which the money was paid. At the end of each month, Respondent’s Bank sent a statement of account of Appellant in the Respondent’s Bank, reflecting the sums paid into Respondent’s Bank in favour of the Appellant.
In June 1978, when the Statement of account for May was received Appellant discovered that certain sums paid into Respondent’s Bank in favour of the Appellant for the days 5, 9, 12, 17, 22 were not reflected in the Statement of account, resulting in a total shortage of payment of N9,750.00. Appellant then wrote several letters dated 6th, 12th, 13th June 1978 to the Respondent to point out this omission and asked for rectification. The letters were ignored. However the Respondent’s Company Secretary and Legal Adviser addressed a letter to the Counselor, Economic Affairs USSR Embassy, Lagos dated 21st January, 1980 concerning the account of Aeroflot on the amounts paid into the account with the Bank that could not be accounted for and stated in paragraph 2 thereof-
“… it is always a matter of deep regret and distress to us that our customers should be defrauded in any way. Aeroflot has therefore all our sympathy for the loss. And if we had been satisfied that the money was actually paid to any of our cashiers, we would unhesitatingly have credited Aeroflot’s account with it and let the loss be on ourselves…”
The Bank denied liability relying on the fact that cashier stamp No.5 which was used in stamping the pay in tellers was missing and was strongly of the view that the money was never received in the Bank’s name by any of their cashiers. The matter went to court and judgment was entered for the Plaintiff. The Defendant appealed to the Court of Appeal and the judgment of the High Court was set aside. The Plaintiff then appealed to the Supreme Court. By a majority decision the appeal was allowed. In his leading judgment, Karibi-Whyte J.S.C. stated as follows at page 198: “The common law action for money had and received has always been used, whenever conversion lies, and money has been received on behalf of the Plaintiff by the defendant to restore such money to its true owner.” He went further to contend that-
“In an action for money had and received, the negligence of the defendant is not a necessary element of the liability. The essential ingredients are that money due to the Plaintiff has been paid to the defendant and who has been unjustly enriched by such payment. It is therefore unconscientious and contra aequum et bonum for the defendant to retain it as against the Plaintiff”.
In his contribution Eso J.S.C. traced the history of the principles behind the claim for money had and received by adopting the dictum of Lord Mansfied in MOSES V. MACFERLAN (1760) 2 BURR 1015 at 1012 where he said-
“This kind of equitable action to recover money back which ought not in justice to be kept is very beneficial, and therefore much encouraged. It lies for money which, ex aequo et bono, the defendant ought to refund; …But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition (express or implied); or extortion, or oppression; or an undue advantage taken of the plaintiffs situation, contrary to the laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is that the defendant, upon the circumstances of the case is obliged by the ties of natural justice and equity to refund the money”
He then expressed his view at page 203 as follows:
“Whether it is unjust enrichment, conversion, or refund of money had and received on the credit of the Plaintiff it is my view that the claim of the plaintiff was, as they put it themselves, not in tort of negligence, but for a wrongful conversion of money had and received to the credit of the Plaintiffs.”
What seems to belie the Appellant’s claim for money had and received seems to lie in the fact that the Respondent credited the amount in the cheque to the account of the 2nd Defendant, the benefit of which went to the Respondent as the Bank only used the proceeds of the cheque to cover an authorized credit which the manager had granted to the 2nd Defendant. In seeking to avoid liability the Respondent stated that what is crucial in the determination of this appeal is the question whether the Respondent acting as the collecting banker in respect of a negotiable instrument such as the cheque (Exhibit ‘A’ in the proceedings) could be held liable in an action for money had and received. Learned Counsel took a critical analysis of the evidence of Olatunji Durojaiye who testified for the Plaintiff/Appellant and submitted that an action for money had and received must be limited to those cases only where the law can consistently impute to the defendant the fiction of a promise and relied on the case of SINCLAIR V. BROUGHAM (1914) A.C. 398 at 415,453.
In paragraphs 16, 17, 18 and 19 of the Statement of Claim, the Plaintiff pleaded as follows:
“16. The Plaintiff shall contend at the trial of this action that it was not under any obligation or liability (past, present or contingent) to pay the sum of N3,500,000.00 or any amount at all to either the 1st Defendant or the 2nd Defendant in respect of the aforestated cheque or at all.
- The Plaintiff shall further contend that the 1st Defendant acted malafide deliberately in falsely assuming that the Plaintiff genuinely paid the N3,500,000.00 which consequently caused the Plaintiffs account to be debited for the afore stated sum as the 1st Defendant actually utilized the money to discharge a debt, contrary to its claim to the Plaintiff that the amount had already been paid out to the 2nd Defendant. The Plaintiff shall also contend that it is against the ties of natural justice and equity for the money to be retained by the Defendants.
- The Plaintiff shall contend at the trial of this action that the 1st and 2nd Defendants are liable to pay the above sum being money had and received to the use of the Plaintiff.
- The Plaintiff shall contend that the 2nd Defendant, having overdrawn its account with the Plaintiff for the above stated sum, is liable to the Plaintiff for same, being an overdraft facility extended by the Plaintiff to the 2nd Defendant by operation of law, which as at 1st December 1993 stood at N5,242,507.73 (Five million Two Hundred and Forty Two Thousand Five Hundred and Seven Naira Seventy Three Kobo), and which said facility has become due and payable and the Defendants have refused to pay despite repeated demands by the Plaintiff. The Plaintiff shall at the trial of this suit rely on the 2nd Defendant’s Statement of Account with it for the month of December 1993.
The evidence adduced shows that when Exhibit “A” was first presented on 28th April, 1993, the Plaintiff did not honour it since it was returned with the endorsement “DAR” meaning Drawer’s Attention Required. As PW1, Olatunji Durojaiye explained when cross-examined, he stated that a cheque marked “DAR” can be represented at a future date (See page 51 line 31 of the Records). The 1st Defendant as the collecting bank represented the cheque to the Plaintiff on 28th May, 1993 by sending if for clearance through the Central Bank. In this regard, the 1st Defendant acted as an agent of the 2nd Defendant and the law which governs the relationship between a collecting bank and its customers is stated in Halsbury’s Laws of England Vol. 3, 4th Edition paragraph 100 as follows:
“In collecting cheques and other instrument for a customer a banker acts basically as a mere agent or conduit pipe to receive payment of the cheques from the banker on whom they are drawn and to hold the proceeds at the disposal of his customer.
The character in which a banker receives a cheque is a matter of fact in each case: he may be a mere collecting agent, or he may take as a holder for value or in due course”.
See: DIKE V. AFRICAN CONTINENTAL BANK LTD (2000) 5 NWLR (Pt. 657) 441 at 455. In the instant case under appeal the 1st Defendant acted as a holder for value in due course as pleaded in paragraph 15 of the Amended Statement of Defence. This position was confirmed by DW2 under cross-examination.
The learned trial Judge reviewed the entire evidence presented in the case and expressed serious misgivings as to whether the claim against the 1st Defendant can succeed. He found it was due to the mistake of the Plaintiff when it sent Exhibit “A” represented on 28th May 1993 to First Bank Plc instead of to the 1stDefendant which resulted in the proceeds of the cheque of N3.5 million being paid into the 2nd defendant’s account with the 1st defendant’s bank after the four days allowed by the clearing House Rules (CHR) had expired and held that for a mistake to avail, the person making the mistake must live up to the standard of a reasonable banker, and the onus of proof of absence of negligence lies on the plaintiff. The learned trial Judge found it difficult to understand how the mistake that occurred in this case can be regarded as reasonable because the name of the 1st defendant appears boldly both on the front and back of Exhibit A and held that there is nothing on the cheque to link the name of First Bank of Nigeria Plc with the entire transaction. He thus reasoned at page 102 lines 25-35 of the records thus:
“Besides it is not readily understood why the Plaintiff did not dishonour the said cheque on first presentation when the 2nd defendant’s statement of account as reflected in Exhibit C-C2 was glaringly inadequately funded. In any case by the time the 1st defendant got to know the true position the 2nd defendant’s account had been credited. In my view what happened on that occasion is inconsistent with the suggestion of a genuine mistake. When the whole evidence is calmly analyzed, the only rational inference to be drawn is that the error was as a result of gross negligence on the part of the Plaintiffs employee”.
The reasoning by the learned trial Judge that the mistake by the Plaintiffs employee amounted to gross negligence no doubt influenced his mind in dismissing the claim against the 1st Defendant. This however does not represent the correct position of the Law. The essential ingredients are that money due to the Plaintiff has been paid to the defendant and he has been unjustly enriched by such payment. See: FIBROSA SPOLKA AKCYNA V. FAIRBAIRN LAWSON COMBE BARBOUR LIMITED supra and AEROFLOT SOVIET AIRLINES V. UNITED BANK OF AFRICA LTD supra. DW2, Michael Omoniyi Jolayemi in answer to questions put to him under cross-examination said –
“I have seen Exhibit N which is the statement of account of the 2nd defendant from April 20th to April 29th 1993. As at 21/4/93 the 2nd defendant was owing the 1st defendant certain amount of money; the exact amount outstanding as at 21/4/93 was N4,503,886.24. The proceed of Ex. A was credited into that account on 28/4/93; after the credit had gone in the balance went down to N1,442,366.81. By that credit the amount owing by the 2nd defendant to the 1st defendant was reduced. The 2nd defendant did not give any instruction to. I am sorry I did not get the question right. My answer is that the 2nd defendant gave his instructions to our bank to apply the proceeds of Ex A (N3.5 million) to reduce its indebtedness to us i.e. by paying in a cheque; that is an instruction to reduce the overdrawn position if the cheque is cleared. The benefit of Ex A was derived by the 2nd defendant; the 1st defendant derived no benefit at all I understand that the Plaintiff attempted to return the cheque (Ex A) to the 1st defendant after the required clearing days i.e. 4 working days. Our bank did not accept the cheque because the clearing days were over and the account of the 2nd defendant who has the account has been duly credited. I am aware that the Plaintiff said they were involved in a certain mistake. Their alleged mistake did not make any difference on the position of the 1st defendant. It is not true that the 1st defendant did not attend to the Plaintiff’s request because the money had been applied to the overdrawn account of the 2nd Defendant. (See page 67 lines 32-34 and page 68 lines 1-18 of the Records) ”
The answers elicited from DW2 under cross-examination have clearly brought out the fact that the 1st defendant benefited from the transaction. The crediting of 2nd Defendant’s account with the amount of N3,500,000 contained in Exhibit A was done on the same day the cheque was sent for clearance. This was before the plaintiff mistakenly sent it to First Bank Plc instead of to 1st defendant. The 1st defendant no doubt took undue advantage of the Plaintiff’s situation; hence its unwillingness to reverse the credit entry in the 2nd defendant’s account.
The equitable remedy of money had and received would have availed the Appellant but in the pleadings it claimed for overdraft facilities it extended to the 2nd Defendant in paragraph 19 of the Statement of Claim and the claim was for the entire sum of N5,242,507.73 together with interest. This claim was not made in the alternative. The learned trial Judge held that the granting of overdraft takes the matter out of the realm of action for money had and received. In reaching its final judgment the learned trial Judge observed and correctly too that no suggestion has been put forward to show that the two defendants are joint account holders. He therefore dismissed the action against the 1st Defendant. I cannot agree more.
It is rather unfortunate that the appellant cannot obtain a relief against the Respondent in this appeal notwithstanding the fact that it benefited from the crediting of the proceeds in Exhibit “A” to the 2nd Defendant’s account which it maintained with the Respondent. It is with reluctance that I have to dismiss this appeal as lacking merit. In the circumstance I order that parties should bear their costs.
Other Citations: (2005)LCN/1680(CA)
