First Bank Of Nigeria PLC V. S. M. P. Akiri (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment)

This is an appeal from the judgment of the Ondo State High Court sitting in Akure in Suit No:AK/70/2005 delivered on the 10th day of June, 2009 by Honourable Justice T. O. Osoba.

The Respondent (plaintiff at the Lower Court’s) claim in its entirety were granted. The Respondent maintained the action against the Appellant (Defendant at the Lower Court) at the trial court claiming the following reliefs:

i) A sum of N500,000.00 being the actual sum negligently and/or recklessly paid to Chief Fola Abiloye by the defendant in complete disregard to his mandate.

ii) A sum of N2million as general damages for the defendant’s negligence and/or recklessness.

iii) Interest on the said sum of N500, 000 at the rate of 21% per annum from 25th May, 2000 cashment date to the date of the judgment herein and at the rate of 10% per annum from the date of judgment to the date of final liquidation. The parties joined issues and led evidence respectively, at the end of which the court found for the Respondent and granted all his claims.

The Appellant in a Notice of Appeal dated 29th day of June, 2009 but filed on 30th June, 2009 dug out 6 grounds of appeal. In their brief of argument dated 21st day of January, 2011 but deemed filed on 13/10/2011 formulated four (4) issues for determination as follows:

1) Whether the respondent’s case is not incompetent, the respondent’s writ of summons dated and filed on 17/3/2005 and the reply to statement of defence dated 16/6/2005 and having being signed and filed by “pp; OLUSEGUN AKANIMODE & Co.”, a person not entitled in accordance with the law to practice as a barrister or as barrister and solicitor (GROUND 1).

2) Whether the learned trial judge was not wrong to have awarded the sum of N500,000.00 to the respondent being the value of the cheque the respondent regularly issued to a third party (GROUND II).

3) The learned trial judge having rightly rejected in evidence the dispatch book upon which the plaintiff allegedly delivered a fresh mandate to the appellant, whether the Lower Court was not wrong to have held that the respondent delivered/made a fresh mandate to the appellant (GROUND III & IV).

4) Whether considering the nature of the respondent’s case and the evidence led, the learned trial Judge was not wrong in awarding damages against the appellant.

The Appellant also filed a reply brief dated 6th day of April, 2012 but filed on 10/4/2012. The respondent in his brief of argument dated and filed on 12th day of March, 2012 adopted the issues as raised by the appellant.

Therefore, in the resolution of this appeal, the issues as formulated by the appellant will be centered on. The issues for determination in this appeal are:

1) Whether the respondent’s case is not incompetent, the respondent’s = writ of summons dated and filed on 17/3/2005 and the reply to statement of defence dated 16/6/2005 and filed on 17/6/2005 having been signed and filed “pp; OLUSEGUN AKANMODE & Co.’ a person not entitled in accordance with the law to practice is a barrister or as barrister and solicitor.