Ethiopian Airlines v. Polaris Bank Limited & Ors (2025)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

OBANDE FESTUS OGBUINYA, JSC (Delivering the leading judgment)

This appeal interrogates the rightness of the decision of the Court of Appeal, Lagos Division (hereinafter addressed as “the lower court”), Coram Judice: Isa Ayo Salami, Raphael C. Agbo and Paul Adamu Galinje, JJCA, in appeal No. CAL/L/409/2001, delivered on the 1st June, 2006. In its judgment, the lower court affirmed the decision of the High Court of Lagos (the trial court) in suit No. LD/3760/1996, delivered on the 6th June, 2000, wherein L. G. A. Marsh, J. dismissed the appellant’s suit for being statute-barred.

The synopses of the essential facts of the case, which transfigured into the appeal, are disobedient to complication.

The appellant maintained accounts No. 36270236 and 7770571037 with the first and second respondents respectively.

On the 2nd April, 1990, the appellant instructed the first respondent to issue a draft in the sum of N447,000 to the order of the appellant and that same should be paid into the appellant’s account with the second respondent.

The first respondent erroneously issued the draft to the order of the second respondent which acknowledged same by endorsing its stamp thereon. While the appellant was reconciling its account at its head office in Addis Ababa, Ethiopia, it discovered the error and it wrote to the first respondent and demanded for clarification about the wrong payment.

After exchange of correspondence between the parties, it appeared the appellant could not make headway with the respondents. It then instructed its solicitors to write to the respondents and the first respondent replied that the matter was under investigation.

Thereafter, it went into a prolonged silence. Sequel to these, the appellant beseeched the trial court, via a writ of summons and a statement of claim filed on the 28th November, 1996, wherein it tabled against the respondents, jointly and severally, the following reliefs:

(1) The sum of N447,000.00 and N5.00 commission on the draft being the sum of money due to the plaintiff from the first and second defendant viz:

(a) Refund of the money for draft negligently issued by the first defendant to the second defendant together with the commission debited against the plaintiff’s account.

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

(3) The sum of N1,000,000.00 being special damages suffered by the plaintiff due to the negligence of the first defendant and for negligently and improperly facilitating the conversion of the sum of N447,000.00 by the second defendant, which sum the first and second defendants have refused to pay to the plaintiff inspite of repeated demands.

(4) Interest on the above sums as stated in (1), (2), and (3) above at the rate of 21% per annum from 2nd April, 1990 till judgment and at the rate of 6% per annum till final liquidation of the debt.

As expected, the first respondent, upon service on it, joined issue with the appellant and denied liability by filing a statement of defence. Thereafter, on the 18th September, 1997, the first respondent filed an application which prayed the trial court to dismiss the suit on the ground that it was statute-barred. The appellant filed a counter-affidavit in opposition to the application. The application was, duly, argued. In a considered ruling, delivered on the 6th June, 2000, reflected at pages 60 – 64 of the record, the trial court granted the motion and dismissed the suit.