Ethiopian Airlines V. Afribank Nig. PLC & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

AGBO J.C.A.

The appellant as plaintiff claimed of the respondents of the Lagos Division of the High Court of Lagos State as follows:-

i. The sum of N447,000(Four Hundred forty-seven thousand naira) and N5.00 (Five Naira) commission on the draft being the sum of money due to the plaintiff from the 1st and 2nd defendants viz:

a. Refund of the money for draft negligently issued by the 1st defendant to the 2nd defendant together with the commission debited against the plaintiff’s account.

ii. The sum of N1,000,000.00 (One Million Naira) being special damages suffered by the plaintiff due to the negligence of the 1st defendant in issuing the bank draft contrary to the plaintiff’s instructions, to the order of the 2nd defendant and for facilitating the conversion of the money stated in the said bank draft by the 2nd defendant.

iii. The sum of N1,000,000 (One Million Naira) being general damages suffered by the plaintiff due to the negligence of the 1st defendant and for negligently and improperly facilitating the conversion of the sum of N447,000 (Four Hundred Forty-Seven Thousand Naira) by the 2nd defendant, which sum the 1st and 2nd defendant have refused to pay to the plaintiff inspite of repeated demands.

iv. Interest on the above sum of money as stated in (i), (ii) and (iii) above at the rate of 21% per annum from 2nd April, 1990 till judgment and at the rate 6% per annum till final liquidation of the debt.

Pleadings were filed and exchanged. Thereafter the 1st respondent on 18-9-97 filed a motion seeking to have the suit dismissed on the ground that the suit was statute barred. Affidavit were exchanged, argument taken and in a considered ruling Hon. Justice L. G. A. Marsh dismissed the suit, having found it to be statute barred.

Being dissatisfied with the judgment of the lower court, the appellant has filed this appeal challenging the ruling of the court below on the following grounds:-

Grounds of Appeal

A. Error in Law

“The learned trial Judge erred in law when he held that “The cause of action arose when the 1st defendant allegedly issued the draft to the order of the 2nd defendant contrary to plaintiffs instruction. The plaintiff was supposed to have taken action to recover the N447,000.00 from the 1st defendant. He did nothing all these years hence he’s caught by the limitation law. He should have sued within the six years.

Particulars of errors

i. When the learned trial Judge erroneously held that cause of action arose when the 1st defendant issued the draft to the order of the 2nd defendant.