Skypower Express Airways Ltd V. Uba, Plc & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED LAWAL GARBA, J.S.C. 

This appeal is against the judgment of the Lagos Division of the Court of Appeal (lower Court) delivered on the 25th November, 2015 in favour of the 1st Respondent who was the Appellant therein.

Briefly, the facts which led to the appeal before the lower Court are that the Appellant had sued the Respondents before the Lagos State High Court (trial Court) vide a writ of summons dated 11th May, 2000 and claimed the following reliefs:

“1. A Declaration that the plaintiff is the owner of and entitled to the various sums of money totaling N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) paid into the 2nd Defendant’s Account No. 201-01874-2 with the 1st Defendant between 24th November and 2nd December 1998 on the inducements of the 1st Defendant.

2. A Declaration that the failure, refusal and or neglect by the 1st Defendant to refund or pay back the said sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) to the plaintiff amounts to unlawful conversion of or an improper dealing with the plaintiff’s fund and a breach of trust as well as a breach of contract.
3. A Declaration that the purported transfer by the 1st Defendant of the plaintiff’s N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) paid into the 2nd Defendant’s Current Account No. 201-01874-2 on the inducement of the 1st Defendant to Allied Internal Ltd, if true is improper, irregular, wrongful, null and void.
4. AN ORDER setting aside the purported transfer of the Plaintiff’s funds being N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) kept in the 2nd Defendant’s Current No. 201-01874-2 to Allied International Ltd, on the purported mandate of the 2nd Defendant’s Managing Director Alhaji Yunusa.
5. AN ORDER directing the 1st Defendant to refund and pay back to the plaintiff the sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) which the 1st Defendant induced the plaintiff to pay into the 2nd Defendant’s Current Account No. 210-01874-2 to be held in trust for purpose of transfer to the Plaintiff’s Account No. 201-019366 when finally established, the sum with interest at 21% per annum, being the current bank rate from 3rd December, 1998 until date of judgment and thereafter till final payment.

Alternatively

The sum of N9,071,650.00 (Nine Million Seventy One Thousand, Six Hundred and Fifty Naira only) against the 1st Defendant being monthly had and received by the 1st Defendant for purposes of opening a Current Account for the Plaintiff, which purpose has failed, with interest at 21% per annum from 3rd December, 1998 until final judgment and thereafter until final payment.

6. N10 million being damages for deceit and fraudulent representations and or misstatements, improper inducements and unlawful deprivation of the use of legitimate funds further to which the plaintiff may suffer damage.”

The claims were denied by the Respondents in their respective Statements of Defence and at the end of trial, judgment was entered in favour of the Appellant on the 30th May, 2008 by the trial Court.

​Aggrieved, the 1st Respondent appealed against that judgment to the lower Court, which, as stated above, allowed the appeal on the ground that the originating processes, i.e; the writ of summons and the Statement or Claim were both signed in the name of a Law Firm and not by the Legal Practitioner known to law and so incompetent.

The appeal was brought vide the Notice of Appeal dated the 3rd December, 2015 on seven (7) grounds and in the Appellant Brief filed on the 17th March, 2016, six (6) issues are set out for determination as follows:-

“i. Whether the lower Court was right by striking out the appellant’s preliminary objection to the competence of the appeal as well as the jurisdiction of the Court to entertain the same and assuming jurisdiction over the matter. This relates to grounds one of the grounds of appeal.

ii. Whether the lower Court was right and did not act in excess of its jurisdiction when it held that the suit was not initiated in accordance with or by the due process of law and as such the suit was incompetent ab initio thereby rendering the judgment delivered by the Court on 30th May 2008 null and void. This issue is relative to grounds 2 & 3.

iii. Whether the lower Court was right when it failed to distinguish the case from the cases of Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521, SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317 and FBN, Plc v. Maiwada ​(2013) 5 NWLR (pt. 1348) 444 as well as apply the principle in Ogundele v. Agiri (2009) 18 NWLR (pt. 1173) 219 and hold that the signature ‘J. O. Esezoobo’ makes it an exception to the cases. This is relative to ground 4.

iv. Whether the lower Court was right and did not violate the appellant’s fundamental right to a fair hearing guaranteed by Section 36(1) of the 1999 Constitution, as amended, when it held that ground one of the 1st Respondent’s Further Amended Notice of Appeal dated 17th October 2012 was competent and required no leave of the Court to validate it. Relative to ground 5.

v. Whether the lower Court properly came to the conclusion that “the Appellant’s complaint (in ground two) flows from the decision of the lower Court wherein the Court decided in favour of the 1st Respondent that the transfer of the money in contention was wrong” and consequently holding the appeal competent. Relative to ground 6.