Nigerian-american Bank Ltd V. Abayomi Samuel & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

The Appellant herein is a company incorporated in Nigeria and licensed to carry on the business of merchant banking with its registered office at 1/12 Macarthy Street, Lagos. The first Respondent is a former employee of the Appellant. During the course of that employment, the 1st Respondent was sponsored by the Appellant for a course upon a condition for which the 1st Defendant executed a service bond dated 7th of April 2000 in which he undertook to serve the Appellant after the course. However on the 9th of February 2001 the 1st Respondent withdrew his service with the Appellant and took up an appointment with the 2nd Respondent also a Company incorporated in Nigeria and carries on the business of banking.

It is against this fact that the Appellant sued the Respondents jointly and severally at the Lagos High Court wherein it claimed as follows:-

(i) (a) The sum of N277,510.00 being damages for breach of the contract between the Plaintiff and the 1st Defendant which breach was induced and procured by the 2nd Defendant together which (SIC) interest thereon at 21% per annum from 24/2/2001 until judgment and final liquidation.

(b) The cost of this action.

(ii) Against the 1st Defendant the sum of N20,000.00 being Solicitors fees incurred (sic) the Plaintiff for the enforcement of the 1st Defendant’s obligations under the service bond aforesaid.”

The Respondents filed a joint statement of defence at the lower Court. While the Suit was pending before the lower Court, the 2nd Respondent filed a motion dated 12th December 2001 wherewith he sought for the following reliefs from the lower Court, to wit:-

“1. An order that the point of law raised in paragraph 10 of the statement of Defence dated 19th of July 2001 to wit.

(a) Whether or not the Plaintiff/Respondent’s statement of claim and Reply to the Defendants statement of Defence reveals any reasonable cause of action against the 2nd Defendant.

(b) If the answer to (a) above is in the negative, whether the 2nd Defendant is properly before this Honourable Court for the jurisdiction of the Court to be competently invoked.

(c) Whether the Honourable Court has jurisdiction to entertain the Plaintiffs suit against the 2nd Defendant as presently constituted and whether the said suit does not amount to an abuse of process in relation to the 2nd Defendant.”

The application was heard and in a considered ruling dated 24th June 2003 by Oyekan – Abdullahi J. the reliefs sought by the 2nd Respondent were granted in the following words:-

“The Plaintiff from the averment on its statement of claim have made out a cause of action against the 1st Defendant to which this Court has Jurisdiction to adjudicate on, as the argument of the Plaintiff/Respondent that the act of the 2nd Defendant is in tort would have been substantiated if the necessary documents such as the bond had been presented before the Court, this omission on the Plaintiff/Respondent part is fatal to its ease and weakens its claim. In conclusion the 2nd Defendant (sic) application succeeds and the name of the 2nd Defendant’s (sic) be and is hereby struck out.”

It is against this ruling that the Appellant who is the Plaintiff at the lower Court has appealed to this Court. It’s appeal is predicated on three grounds of appeal dated 27th of June 2003. These grounds of appeal are hereunder reproduced without their particulars as follows:-