Union Bank of Nigeria Plc V. Luobai Nigeria Ltd. (2000)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A. 

This is an appeal against the ruling of the FCT High Court delivered on the 28th day of July, 1999 by His Lordship Hon. Justice M. D. Saleh Chief Judge, as he then was.

The brief background facts of this case are that the Respondent as plaintiff in the trial Court claimed against the Appellant as defendant under the undefended procedure the sum of N27,873,957.24 being the value of three Oceanic Bank Cheques lodged by the Respondent into its bank account with the Appellant’s Asaba Branch with instructions that the said account be transferred to the Appellant’s Abuja Branch. It was alleged that the Appellant after clearing the said cheques converted the proceeds for its own use, refused, failed and neglected to transfer the account with the said sum of money of the Respondent to the Abuja Branch of the Appellant. By an order of the trial court, the suit was however, – transferred to the general cause list pursuant to the success of the Appellant’s notice of intention to defend the suit in that regard. Pleadings were filed and exchanged by both parties and trial commenced.

The Respondent after calling two witnesses filed in the trial court, a Notice of Discontinuance. The Respondent’s application to discontinue the suit was granted on 28/7/99 by the trial Court. The case was then struck out with liberty to relist the suit.

Dissatisfied with the ruling, the Appellant appealed to this Court vide its Notice of Appeal on one sole ground. The sole ground of appeal with its particulars is as follows:

“GROUND OF APPEAL

The Learned Trial Judge erred in law when he struck out the respondent’s case with liberty to relist.

PARITCULARS OF ERROR:

1. A) The respondent had called two witnesses in the proceedings who were duly cross-examined thereby making the case part-heard
2. B) The law is that once a case is part heard and a notice of discontinuance is filed for any reason whatsoever the proper order to make in the circumstance is that of dismissal of the case.”

From the sole ground of appeal, the Appellant formulated one issue for determination. This is:

“The issue for determination in this appeal is whether the Learned Trial Judge was right in Law when he struck out the plaintiff’s case with liberty to relist instead of an order of dismissal having regard to the circumstances of this case.”

The Respondent on its part raised a preliminary objection and formulated one issue for determination of the appeal. These are:

“(A) PRELIMINARY ISSUE/ OBJECTION

Whether the Appellant can raise and argue for the first time on appeal the only ground of Appeal which raises an issue which the Appellant did not raise and canvas at the lower Court, what is the proper order to be made after leave was granted to the Respondent to discontinue the Suit, whether that of striking out or an order for dismissal without first seeking and obtaining leave of this Court.

(B) SUBSTANTIVE ISSUE