Perverse decision amounts to miscarriage of justice — SC

In paragraph 17(a) and (b) of the Further Amended Statementof Claim, the plaintiff/respondent claimed against the appellant/defendant as follows:-“(a) Refund of the sum of us. $186,990.00 or the equivalent in Naira, being money deposited by plaintiff in the defendant bank for remittance to Goodfit Trading Company Limited.(b) Interest at the current rate of interest per […]

In paragraph 17(a) and (b) of the Further Amended Statementof Claim, the plaintiff/respondent claimed against the appellant/defendant as follows:-
“(a) Refund of the sum of us. $186,990.00 or the equivalent in Naira, being money deposited by plaintiff in the defendant bank for remittance to Goodfit Trading Company Limited.
(b) Interest at the current rate of interest per annum on the total sum of US. $186,990.00 or’ the equivalent in Naira from the 18’’’ February, 1983 till date of judgment in this suit and thereafter at 5% per annum until the whole amount is fully paid.”
The judgment of the trial court on the above claims is in thefollowing terms:
“0n the whole, the plaintiff’s action succeeds. I give judgment in favour of the plaintiff against the defendant for the sum of us. $186,990.00. There is no evidence as to the rate of interest claimed. The court cannot act on mere conjecture and is not allowed to speculate as to what the prevailing rate of interest would be. This head of claim fails and it is hereby struck out.”
Appellant/defendant was dissatisfied with the above judgment and consequently appealed against same to the Court of Appeal.  The issues raised by appellant for the determination of the appeal are asfollows:.-
“1. Should the judgment against the appellant be sustained when the appellant was not a party and/or agent to the contract of the sales or supply of goods moreso, when the said-’supplier of the goods was not made a party to the action. (Arising from Grounds 1 and 2).
2 . Whether it was right for the court below to hold that the appellant was liable to refund the payment made by the respondent and if the answer to the above question is in the positive, was the appellant liable to refund the said sum in foreign currency as opposed to local currency (Naira). (Arising from Grounds 3 and 4).
3 . Did the trial court properly evaluate the evidence led in this suit in coming to the judgment it reached against the appellant? (Arising from 5) “.
It is important to note that the lower court resolved the issues  against appellant resulting in the instant appeal.
The facts of the case, which are essentially not disputed,  include the following:-
Sometime in 1982, the deceased brother of the respondent by name CYPRIAN OZOKWERE placed an order for the supply of motor spare parts valued at $186,990.00 from Goodfit Trading Company Limited of Hong Kong payable under a DIP i.e Document against Payment, contract. It was agreed that payment for the said goods would be made through appellant.
The transaction was for sale of the goods by description. It is the case of the respondent that Goodfit Trading Company Limited shipped and delivered goods of different description, namely, ladies wears, in breach of its contract with the respondent.
On or about 18th February, 1983, Goodfit Trading Company Limited delivered to the respondent through appellant Bill of Lading (which is ExhibitP3), and Bill of Exchange NO. DP/GF/S037/82 dated 11 th December, 1982 together with the “Remittance for collection and/or Acceptance Order”, Exhibit P4 and P4A, as a result of which the respondent paid a total price of the goods of $186,990.00 as stated in the invoice, to appellant. The relevant documents indicated that the goods ordered were FEBI Motor Spare Parts. Rather than ship/supply the goods so ordered, Goodfit Trading Company Limited shipped contraband goods which were confiscated and sold by the Department of Customs and Excise. Appellant was duly notified. The respondent then demanded a refund of the sum paid to appellant.
It is the case of appellant that it received a letter of instruction from a correspondent bank, Hong Kong and Shanghai Banking Corporation of 245 Lai Chi Kok Road, Shamshuipo Kowloon, Hong Kong, together with an attached Bill of Exchange requesting it to collect the value disclosed in the Bill of Exchange; the respondent paid the sum of N128, 198.28k the then value of $186,990.00 as a result of which appellant become obligated, under international trading customs and letter of instruction to transfer the money through the correspondent bank, and that the respondent was under obligation to deliver to the appellant customs Bill of Entry, Tally Sheet, Customs and Excise Payment Schedule, Tax Clearance Certificate and Form M to facilitate the transfer of the funds which the respondent failed to do.
The main contention of appellant in the issue under consideration is that the principle of “money had and received” for a consideration that has failed applies in quasi-contract situations and only between the parties to the failed contract, i. e the respondent and  Goodfit Trading Company Limited and not appellant who is not a party to that contract. ‘Appellant has, however not denied receiving the money in question from respondent on behalf of the correspondent bank for the benefit of Goodfit Trading Company Limited under a contract of sale of goods by description which failed.
Also not disputed is the fact that appellant still retains the money so paid in its possession haven not remitted it to the correspondent bank nor paid same in local currency to a designated Nigerian bank for the benefit of Goodfit Trading Company Limited.
 The question is whether it is true that the cause of action in this case is founded on contract. The answer is clearly in the negative as  concurrently found by lower courts. It follows that the submission on privity of contract between the parties to this action is not relevant.
It is however accepted by both parties that a cause of action for  money had and received for total failure of consideration is founded on the equitable doctrine of quantum meruit which principle is designed to eliminate the concept of unjust enrichment.
What is quantum meruit? Blacks law Dictionary, 8th Ed. at page 1276 defines the term thus:-
    “1.     The reasonable value of service; damage, awarded in an amount considered reasonable to compensate a person who has rendered services in a quasi contractual relationship.
2 . A claim or right of action for the reasonable value of services rendered.
3 . At common law, a count in an assumpsit action to recover payment for services rendered to another person.
 Quantum meruit is still used today as an equitable remedy to provide restitution for unjust enrichment. It is often pleaded as an alternative claim in a breach of contract case so that the plaintiff can recover even if the contract is unenforceable.”
 What then is “Unjust Enrichment”
Blacks Law Dictionary, 8th Ed defines the term at pages 1573 -1574,as follows:
“1. The retention of a benefit conferred by another without offering compensation, in circumstance where compensation is reasonably expected.
A benefit obtained from another, not intended as a flift and not legally justifiable, for which the beneficiary must make restitution or recompense.
    3.     The area of law dealing with unjustifiable benefits of this kind.”  
Emphasis supplied. “
A combined reading of the two concepts show clearly that their application is not limited to cases ‘of contract, the overriding design being to discourage unjust enrichment. Which may arise from facts not arising from contract, as in the case in the instant case, where
Exhibit P4 discloses that the Bill of Exchange was drawn by Goodfit Trading Company Limited as the drawer, and remitted through the
Hong Kong and Shanghai Banking Corporation to the appellant for collection in Nigeria, as the collecting banker. In the circumstance and as found by the lower courts, the correspondent banker or remitting banker, is an agent of the drawer of the bill i.e Goodfit
Trading Company Limited, while appellant, as collecting bank, is an agent of the remitting bank· as well as a sub-agent, of Goodfit
Trading Company Limited, the drawer of the said Bill of Exchange.
It is in evidence which evidence is also not disputed that the purchase price of$186,990.00 paid by the respondent for the sale of Motor Spare Parts by description, has not been remitted to the correspondent bank for the benefit of the drawer due to the failure of  the goods supplied by Goodfit Trading Company Limited to meet the description of the goods ordered.
 Also not in dispute is the fact that appellant was, following the failure to remit the sum to the correspondent bank for the benefit of the drawer, instructed to pay the naira equivalent of the money into a specific account with a Nigerian bank in Nigeria which appellant also failed to comply with.
It is not also disputed that respondent made demand on the sum paid for the goods prior to any payment of the proceeds to the principal following the discovery of the defect in the goods supplied.
In the circumstances of this case, it is very unconscionable to allow the appellant to continue to hold unto the money, which no one, except respondent, has laid claim to, on a technical ground that appellant was not a privy to the contract between respondent and Goodfit Trading Company Limited and as such the equitable principles- of “money had and received” does not apply to compel appellant to repay the money paid by respondent to appellant for a consideration which has totally failed. The principle is an equitable remedy which is the conscience of the law. On what basis should appellant be allowed to continue to unjustly enrich itself at the expense of the respondent who made the deposit for goods he never received? I hold the view that this is a species of action where the form does not really matter but the substance.
On the sub-issue of non-joinder of Goodfit Trading Company Limited in the action, it is settled law that there is a distinction between the desire of making a person a party to a suit and the necessity of making him a party. For a person to be a party to an action, he must be a necessary party so as to be bound by the decision in the proceedings.
In the instant case, appellant received money from the respondent for’ a consideration which failed and refused even to comply with the instructions of the party on whose behalf it received same and still holds unto the money. It is very clear in the circumstances that only appellant is a necessary party in an action instituted by the respondent to claim the money paid in the circumstances of this case.
There is also the sub-issue dealing with the speculative nature of the holding by the lower court that when it was not possible to effect service on Goodtit Trading Company Limited, the said company was dropped from the proceedings. This sub-issue is not worthy of any consideration as what is complained of is not a finding of fact made by the lower court but a confirmation of same by the trial court.