Abiotex International Limited V. Fidelity Bank PLC (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment)

The instant appeal is against the Ruling of the Delta State High Court sitting at Effurun in Suit No. EHC/13/2013, between Abiotex International Limited vs. Fidelity Bank Plc delivered on the 2nd of December, 2013.

The brief facts generating this appeal are not in contest. The Appellant herein, as plaintiff at the court below on the 10th of April, 2013 took out a writ of summons against the Respondent wherein appellant claimed as follows:

(i) The sum of N500,000,000 (five hundred million naira) being damages in negligence in that sometimes in January, 2012 to date, the defendant without due care operated the claimant’s account number 4010389994 and 5080047748 maintained at the Effurun, Warri branch of the defendant in clear violation and utter disregard for the mandate of its operation.

(ii) An order of this honourable court directing the defendant to furnish the claimant an accurate statement of the said claimant’s accounts for the period of December 2011 to date.

(iii) An order of injunction restraining the defendant, whether by itself, its servants, agents and or privies howsoever from any further operation of the said accounts without complying with the mandate for its operation.

The defendants now Respondents upon being served the statement of claim, filed a motion on notice pursuant to Section 251(I)(N) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and Order 22 Rule 2 of the Delta State High Court (Civil Procedure) Rules 2009, praying for the order of court striking out the suit as being incompetent, in that it was not initiated in due compliance with due process of law.

The trial court listened to the addresses of the learned counsel on the issue, and on the 2nd of December, 2013 delivered the vexed ruling dismissing the suit.

Aggrieved by the Ruling of the court dismissing the suit filed in limine, Appellant on the 16//12/2013 filed a notice of appeal containing two grounds. The two grounds and their particulars are reproduced hereunder:

(a) The learned trial judge erred in law in ignoring the submission of counsel that the Defendant/Respondent’s preliminary objection was not filed within the time allowed by the Delta State High Court (Civil Procedure) Rules 2009.

PARTICULARS

(i) Order 5 Rule 2(1) of the Delta State High Court (Civil Procedure) Rules, 2009 provides, that any application to set aside for irregularity in any proceedings, any step in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within 14 days from the date of service of the originating process and before the party applying has taken any fresh step after becoming aware of the irregularity.

(ii) The Rules of court must be obeyed.

(iii) The Claimant’s claim was filed on 10th April, 2013 and served on the Defendant on the 15th April, 2013.