Mr Emmanuel Ochedi V. Union Bank Of Nigeria Plc. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A., (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Justice, (herein referred to as the Trial Court) sitting in Makurdi, the capital of Benue State, dismissing the claim of the plaintiff (herein referred to as the appellant) in favour of the defendant (herein referred to as the respondent) on 14/01/2009.

The brief facts of the matter according to the statement of claim is that, the appellant was employed by the respondent in May, 1989 and eventually rose to the rank of officer (ii), until sometime on 30th August, 2005 when he was invited by the police for investigation on an alleged fraud at the Makurdi Branch of the respondent. The appellant was promptly suspended from work without pay contrary.

In the course of investigation, one Audu Adah (the cashier of Makurdi Local Government Pensions Board) confessed to embezzling N3.3 Million. Further sums were recovered from the two other staff of the respondent Bank and returned the sum to the said pension Board.

There after these other staff were released by the police while the appellant remained in detention till 03/04/2006. Notwithstanding that the police had concluded investigations and exonerated allegedly the appellant, respondent, the bank did not lift the suspension nor release his car, neither was he permitted to operate his account with the respondent Bank. All his written complaints to the branch manager of the respondent’s bank or the Head office to do so failed and hence the appellant filed this action on 20/08/2007, wherein, some reliefs were claimed as per paragraph 28 of the statement of claim on pages 3 – 8 of the record.

It should be noted that after serving the respondent Bank with the writs and the statement of claim, the respondent Bank did not file any statement of defence. In accordance with the rules of the trial Court, the appellant was told before judgment in his favour that he must prove that he is entitled to judgment on the pleaded fact. After trial, owing to the Appellants’ failure to prove his case, the trial Court dismissed the suit.

Being dissatisfied, the appellant on 26/02/2009 filed his appeal on two (2) grounds of appeal as contained on pages 68 – 70 of the record. In accordance with the Rules of this Court both counsel to the parties filed their respective briefs, The appellant filed his appellant’s brief on 07/10/2009 while the respondent’s brief was filed on 09/11/2009 after receiving the appellant’s brief,

On 23/04/2012 when this appeal came up for hearing the respondent drew the attention of this court to his Preliminary Objection raised. His argument on the objection is at pages 6 – 7 of his brief, He adopted and relied on same and urged this court to uphold it.

The appellant’s attention thereafter was drawn to the Preliminary Objection which he stated that he was aware but does not reply and in fact did not reply. On the substantive appeal, the appellant filed his brief which contained two issues for determination while the respondent formulated one issue and adopted the appellant’s second issue. Both Counsel adopted and relied upon their respective arguments to be their respective submissions.

The Preliminary Objection is to the competence of ground (1) of the appellant’s ground of appeal, and the respondent urged this Court to strike out the said ground. The contents of the Preliminary Objection as stated at pages 6 – 7 of the brief are as follows:

Ground 1: That this ground of appeal is incompetent and incurably defective. He contended that this ground complained about ought to be omnibus ground but couched in a manner that violates the mandatory provisions of Order 6(3) of this Court Rules.

Ground 2: that being an issue of law it cannot be argued under the omnibus ground of appeal when such issues of law ought to have been raised as a separate ground of appeal, he refers us to the particular of Error which states that.

“The decision of the court is against the weight of the evidence”

In his argument, the learned Counsel for the respondent referred us to the case of Federal Ministry of Health & Anor Vs Comet Shipping Agencies Ltd (2009) ALL FWLR (Pt.483) 1260 @ 1263 and 1272, and the case of Aderibigbe & Anor vs. Abidoye (2009) 4 SCNJ 259 2 262 & 279. On the whole, the learned counsel submitted that any ground of appeal or any part thereof not permitted under the Rules of this Court and the Law, stands to be struck out, He urged this Court to strike out this ground of appeal.