CaseLaw
Onwuchekwa V. NDIC (2002) CLR 2(g) (SC)
Judgement delivered on February 22nd 2002
Brief
Facts
The Appellant who was a businessman and the bank's customer sometime in 1983 received a contract from the Federal Electoral Commission to supply certain goods pursuant to which the Commission requested the Central Bank and the Respondent to make available foreign exchange to the Appellant. The Appellant duly requested the Respondent to undertake the submission, processing and obtaining from the Central Bank and to request approval for the remittance to the Appellant's overseas suppliers (Tellscar Ltd. of London) the sum of 32,500 pounds being the FOB value of the goods to be imported into Nigeria. The Appellant gave the Respondent necessary documents and paid the equivalent sum of money (including bank commission) demanded by the Respondent for the processing and remittance of the said goods through the normal banking procedure. The Appellant duly took delivery of the goods which were air freighted to Nigeria by his suppliers.
However, the Respondent failed to remit the purchase price of the goods to the overseas suppliers and neglected to complete fully the form transmitted to the Central Bank. The Respondent continued to default by non-remittance of the price of the said goods until a take-over of government ushered in a new military administration which introduced a Trade Debt Refinancing Scheme affecting uncompleted transactions, such as the Appellant's, and requiring defaulting banks, such as the Respondent, to re-submit necessary applications for remittance. The Appellant alleged that the Respondent in responding to the Central Bank's circular for the Scheme "did not exercise due care and diligence in filing the requisite forms."
The Respondent's "negligence, wrong figures, careless filing of forms and utter disregard to the care required in processing the application caused the non-remittance of the sums involved in the suit." In consequence of non-remittance of the sums the Appellant suppliers refused to entertain fresh orders from the Appellant. According to the Appellant, in the circumstances he had to secure from another source foreign exchange with which he paid directly to Tellscar Ltd. He suffered loss and damage. Hence, his claim.
The trial judge after considering the evidence came to the conclusion that the Respondent was negligent. Since nothing turns in this appeal on whether he was right or not in coming to that conclusion his grounds for so concluding are immaterial. Suffice it to say that he entered judgment for the Appellant in the sum of (thirty-two thousand five hundred pounds sterling forty-eight pence) "to enable him repay relatives and friends overseas who dipped hand into their pockets and paid the debt which the Defendant defaulted (sic) him from paying" and N100,000 damages.
The Court of Appeal allowed the appeal since the Appellant borrowed foreign currency outside Nigeria contrary to the exchange control (Anti Sabotage) Act. Tobi J.C.A agreed with the lead Judgment delivered by Ubaezonu J.C.A. Akpabio J.C.A. wrote a dissenting Judgment affirming the Judgment of the High Court.
Appellant dissatisfied appealed to the Supreme Court.
Issues
Whether the defence of illegality was rightly applied by the majority...