Union Bank Of Nigeria Plc. V. Romanus C. Umeoduagu (2004)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

The dispute in this appeal is on a very narrow compass. It is simply for the determination of when the cause of action has arisen in the case having regard to the circumstances. The case did not go to trial and no evidence was called at all. Everything was based on the pleadings of the parties. ‘

According to paragraph 13 of the statement of claim, the plaintiff now respondent, Claimed against the appellant for:-

“(a) Payment to the plaintiff of the said sum of $121,038 (one hundred and twenty-one thousand and thirty-eight dollars) which the plaintiff purchased from the defendant but which the defendant failed and/or neglected to remit to the plaintiff’s overseas customers, or its naira equivalent at the official parallel market rate of N82.50 (eighty two naira fifty kobo) per Dollar amounting to N9,985,635 (Nine million, nine hundred and eighty-five thousand six hundred and thirty-five Naira).

(b) Interest on the said sum claimed at 21% per annum from 1995 till payment of the sum claimed or date of judgment in this suit, whichever is earlier”.

In the amended statement of defence filed by the appellant, paragraph 16 reads:-

“Defendant will contend the following preliminary points:-

(a) The plaintiff statement of claim discloses … no cause of action against the defendant;

(b) That the plaintiff’s cause of action having accrued in 1982, is statute barred;

(c) That the plaintiff lacks competence to institute the action for recovery of the deposits”.

By this averment, the appellant has raised a preliminary objection that no cause of action is disclosed in the statement of claim and that the action of the respondent is statute-barred. The learned trial Judge, quite properly in my view, decided to hear the parties on the preliminary objection before proceeding to trial. I say this is proper in the circumstances because if he decides to sustain the preliminary objection, that is the end of the matter as far as he is concerned. The learned trial Judge Amaizu, J. (as he then was) after hearing the parties on the objection, overruled it, and ruled that the plaintiff respondent had a cause of action and that “in the state of the plaintiff’s pleading the action is not statute-barred”.

Dissatisfied with the ruling, the appellant appealed to the Court of Appeal which by a majority decision dismissed the appeal.He now appealed here.

The facts of this case as gleaned from the pleadings as no evidence was called, is that the respondent purchased seven bills totaling US$ 121,038 from the appellant bank in 1982 on the agreement that the appellant should immediately transfer the said sum to the respondent’s suppliers overseas being payment for goods purchased from them by the respondent. The appellant failed or neglected to remit or transfer the sum as agreed. As a result, the respondent had to arrange to pay the said sum to the overseas suppliers in 1983 when they came to Nigeria and demanded the payment from him. The respondent then demanded from the appellant to know the whereabouts or what happened to the bills he purchased from them in 1982, but was only requested to exercise patience. He waited patiently until 1995 when his patience was exhausted and he joined the appellants in the search for the said sum. In the cause of his investigations, he discovered that the appellants were keeping the sum in their account in the Central Bank of Nigeria. As a result the respondent demanded from the appellants the refund of his money in US dollars or its equivalent in Naira at that time. The appellants failed to do so and the respondent filed this action on the 19th of June, 1996.

In the briefs of argument filed by the parties and exchanged between them, in this appeal, issues for the determination of this court were formulated. The 3 (three) issues raised by the appellants read: