By: Stephen Azubuike
Passco Int’l Ltd v. Unity Bank Plc [2021] 7 NWLR (Pt. 1775) 224 (SC)
Passco Int’l Ltd (The Appellant) informed its bank, Unity Bank Plc (The Respondent), that it had concluded plans for the sale of its property in Lagos State and of its intention to transfer the proceeds of the sale to the United Kingdom to enable it facilitate its investment in Dubai, United Arab Emirate. To this end, the Appellant instructed the Bank to transfer the sum of N150 Million in the Appellant’s current account with the Bank to the Appellant’s account in the UK. The Appellant’s case was that the transfer wasn’t done. It sued the Bank to recover the money.
The Appellant’s bank mandate required that instruction for any transfer of fund should be in writing with the Appellant’s seal. However, it was in evidence that the Appellant’s Chairman and Chief Executive, and sole signatory to the Appellant’s account, verbally requested that the transfer of the N150 Million should be undertaken by the Bank without necessarily following the requirements of the mandate. The Bank obliged, acting on the verbal instruction by the Chairman/CEO of the Appellant.
In one of the proceedings at the trial Court, Counsel to the Appellant admitted in open court that the said sum of N150 Million was already paid to the Appellant’s UK account by the Bank.
If the disputed sum of N150 Million was already transferred to the Appellant’s account in the UK, why are parties in Court, you might ask.
The Appellant and its Counsel had a mission. The mission was to reap where they did not sow. While the Appellant was hoping to be credited in its account in Nigeria with another N150 Million, the Appellant’s Counsel was looking forward to 10% of that sum, which was claimed by the Appellant as the cost of litigation.
Thus, the Appellant’s Counsel argued that the purported transfer of the N150 Million was null and void for lack of proper authority, on the ground that the Appellant’s mandate to transfer ought to be in writing and not verbal. In essence, the Appellant was seeking to recover money already sitting in its bank account in the UK as desired. The Appellant’s Counsel sought to use the instrumentality of the law to recover money not missing, money not lost, money already in his Client’s possession, simply because the mandate relied on by the Bank in making the transfer was verbal not written. No harm or injury came to the Appellant.
The Appellant was determined to dig gold but the Court stood in the way, as the trial Court and the Court of Appeal dismissed the action for being frivolous and lacking in merit.
At the Supreme Court, the Appellant’s Counsel relied on Section 47(1)(c) of the Banks and Other Financial Institutions Act and other sections, including relevant provisions of the Money Laundering (Prohibition) Act 2011 in advancing his misguided arguments that the transfer based on verbal mandate instead of written instruction was illegal. The issue of illegality was raised for the first time at the Supreme Court.
The Supreme Court proved that the law is not an ass. It dismissed the appeal on 19 February 2021. The apex Court upheld the Court of Appeal’s position that it was unconscionable for the Appellant to cause the transfer on its behalf of the sum of N150 Million by the Respondent to its account in the United Kingdom and then turn around to allege illegalities to impugn the transaction.
The Supreme Court was utterly infuriated. In dismissing the appeal, Saulawa, JSC had no mercy on the Appellant’s Counsel. At page 260 of the report, his Lordship brutally condemned Counsel’s conduct as follows:
Before placing the very last dot to the instant judgment, I have deemed it expedient to allude to the unbecoming and rather reprehensive attitudinal disposition of the learned Counsel to the Appellant, Chuka Efezue Esq. in the course of the trial of the suit vis-a-vis the appeals. In my considered view, the Appellant’s learned Counsel, Efezue Esq. having expressly admitted at the trial that the sum of N150 Million (the subject matter of the suit) had actually been effectively transferred and paid by the Respondent into the Appellant’s Union Bank Plc UK Account, he ought to have hearkened to the voice of wisdom to honourably withdraw from the case.
The conduct of the Appellant and especially his Counsel is, perhaps, one of the most outrageous instances of abuse of court process.
The Supreme Court went to town in reminding the Appellant’s Counsel and lawyers generally that (at pages 261-262):
The legal practice is a very serious business exclusively undertaken by responsible, honourable, and serious minded practitioners… A legal practitioner must at all times consider himself as a minister in the hallowed temple of justice, who has a duty not only to his client but to the Court, and the nation at large. He should be patriotic, honest, and avoid any temptation to be swayed by momentary consideration or selfish interest.
Photo Credit: Law Truly
This article was first published on May 27, 2021 by https://stephenlegal.ng/supreme-court-lashes-a-lawyer-who-sought-to-recover-his-clients-n150m-already-paid-to-the-client-to-his-knowledge/
AUTHOR: STEPHEN AZUBUIKE is lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.
