Diamond Bank Ltd & Anor V. Mr. Adebayo Olaoti Olaleru (2008)

LawGlobal-Hub Lead Judgment Report

P. A. GALINJE, J.C.A

This is an appeal against the ruling of the Lagos State High Court which was delivered on the 28th June 2002.

The Respondent herein as Plaintiff at the lower Court claimed against Diamond Bank Ltd as 1st Respondent and the Appellant, who was the 2nd Defendant as well as the Managing Director of the 1st Respondent the following reliefs: –

“1. A declaration that the purported letter of resignation dated 5th February 2002 under the hand of the Plaintiff is void and of no effect whatsoever same having been procured by the 1st Defendant from the Plaintiff unlawfully under duress.

2. A declaration that the letter of the 1st Defendant dated 5/2/2002 acknowledging the Plaintiff purported resignation cannot in law or in any event, qualify as an acceptance of the purported resignation by the Plaintiff.
3. A declaration that the Plaintiff is not indebted to the 1st Defendant in the sum of N 163,85 8k or in any sum whatsoever.
4. An order of perpetual injunction restraining the 1st Defendant from debiting the Plaintiffs account No.0162030002165 in the sum of N163,858.85 or charging any interest whatsoever on the said sum as against the Plaintiffs account with the 1st Defendant.
5. N20,000,000.00 general damages against the 1st Defendant for the injury suffered by the Plaintiff.
6. 64,200.00K being special damages against the 1st Defendant for the medical expenses incurred by the Plaintiff by reason of injury to his person on 5/2/002.
7. 10,000,000.00 against the 2nd Defendant being general damages for the injury to the person/character of the Plaintiff by the publication of the 2nd Defendants defamatory words aforesaid.
8. Costs.”

After filing the writ and the statement of claim, the Appellant entered a conditional appearance and subsequently brought an application dated and filed on the 12th day of March 2002 in which he sought for an order striking out his name from the suit. In reaction to the application aforesaid, the Respondent filed a notice of preliminary objection dated 25th March 2002, on the grounds that the application was an abuse of Court process, premature and incompetent, frivolous, vexatious and cannot be entertained in law.

Parties filed written addresses on the preliminary objection which were adopted on the 7th of May 2000. In a reserved and considered ruling, Pedro, J. upheld the preliminary in the following words: –

“I therefore hold that the preliminary objection of the plaintiff brought pursuant to order 23 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1994, succeed (sic) and that this application brought by the 2nd Defendant/ Applicant is premature and incompetent and cannot be entertained at this stage. The 2nd Defendant is ordered to file his defence wherein he can raise his point of law.

The 2nd Defendant application dated the 12th day of March 2002 is hereby struck out.”

It is against this decision that the Appellant has brought this appeal.

His notice of appeal, which is dated and filed on the 17th day of July 2002, contains two grounds of appeal which I reproduce hereunder without their particulars as follows: –

“1. The learned trial Judge erred in law in that part of her decision when she held that:

“A careful and critical perusal of the ground upon which the 2nd Defendant application is brought in particular paragraphs 3, 4, 5 show that the 2nd defendant is by his application raising a point of law. By raising a point of law without the 2nd defendant filing any defence: I find that this application of the 2nd Defendant is in the nature of demurrer.”

2. The learned Trial Judge erred in law when she held in her ruling that:

“I therefore hold that the preliminary objection of the Plaintiff brought pursuant to order 23 Rule I of the High Court of Lagos State (Civil Procedure) Rules 1994 succeed and that this application brought by the 2nd Defendant/Applicant is premature and incompetent and cannot be entertained at this stage. The 2nd Defendant is ordered to file his defence wherein he can raise his point of law.”

The record of appeal, which was forwarded to the registry of this Court, was duly served on the parties on the 26th August 2005. The Appellant’s brief of argument was filed on the 26th September 2005. The Respondent failed and/or neglected to file a brief of argument. By a motion on notice dated and filed on the 24th July 2006, the Appellant sought for and was granted an order by this Court directing that the appeal herein be heard and determined on the Appellant’s brief of argument only.