First Inland Bank Plc. V. Alliance International Nigeria Ltd. & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

The respondents herein were the plaintiffs in suit No. FHC/L/CS/122/2000 commenced through the Writ of Summons filed with Statement of Claim at the Lagos Division of the Federal High Court on 8th February, 2000, and subsequently amended through the amended writ of summons and further amended statement of claim filed on 11th August, 2006. By paragraph 37 of the said further amended statement of claim the plaintiffs had claimed thus;

“37. (a) WHEREOF the Plaintiffs claim against the Defendant, the sum of U$876,100 (Eight Hundred and Seventy Six Thousand One Hundred United States Dollars) being a refundable cash collateral deposited by the Plaintiffs with the Defendant for the confirmation of 4 letters of credits in favour of Manufacturers Hanover or Trust Company of London in July 1986 and which sum the Defendant, despite its promises in 1995/96 has failed, refused or neglected to refund despite repeated demands.

(b) The Plaintiffs further claim interest on the said amount at the Central Bank of Nigeria rate (i.e. 21% per annum) with effect from July, 1986 till the date of judgment and thereafter at the rate of 6% per annum until the amount is fully and finally liquidated”.

The appellant as defendant filed statement of defence of 23 paragraphs on 18/12/2000 and amended statement of defence on 8/2/2007. Hearing of the suit had commenced before two learned Judges who could not complete the hearing due to their transfer, and it was eventually assigned to Hon. Justice P. F. Olayiwola, who commenced trial denovo before he was also transferred to Awka Judicial Division of the Federal High Court at a stage when the plaintiffs’ first witness (PW1) had concluded his evidence in Chief and was to be cross examined, and at the instance of the plaintiffs and concurrence of the defendant, the suit was transferred to Awka Judicial Division for continuation of hearing by Hon. Justice Olayiwola.

Hearing then continued in the presence of the parties’ counsel with the Plaintiffs calling one more witness and closed their case on 27th January, 2009. The suit was adjourned to 24th February, 2009 for further hearing which unarguably was for the defence to commence.

Meanwhile on 19th February, 2009 the defendant filed a Notice of Preliminary Objection Under Order 25 Rules 2 and 3 of the Federal High Court Civil Procedure Rules 2000 as follows:-

“TAKE NOTICE THAT THE Defendant herein doth hereby raise an objection that this Honourable Court does not POSSESS THE JURISDICTION to continue and or conclude the trial of this action, on the ground that the plaintiffs claim is STATUTE BARRED.

And take further notice that upon hearing of this preliminary objection, the applicant shall seek, an order dismissing the plaintiffs entire claim”.

When the Suit came up in court on 24th February, 2009, the proceedings as captured on page 95 of the record of appeal is as follows:-

“O. A. EGWATU ESQ for plaintiff.

R. O. NWOSU ESQ for defendant.

MR. NWOSU: We have a Motion on Notice on matter being statute barred.

EGWATU: We have finished plaintiff’s case. Let them put it in their Defence or adopt our case and argue the point of law.