United Bank For Africa PLC V. Dr. Hyacinth Osondu Eze (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAIDU TANKO HUSAINI, J.C.A. (Delivering the Leading Judgment)

This Interlocutory Appeal is against the Ruling delivered at the High court of Enugu State Holden at Enugu on 4th Day of June, 2012 in Suit No. E/56/2011.

United Bank for Africa Plc, the Appellant herein are the defendants in the suit instituted at the High Court wherein the Plaintiff, Dr. Hyacinth Osondu Eze, in the writ of summons and the statement of claim, sought to compel the defendant to return to him the 3 (three) certificates deposited with them (defendants).

Upon service on them of the papers Originating the action, the defendants, by way of a Motion on Notice dated the 13th May, 2011 and filed at the Court below on the 19/5/2011 prayed the Court for:-

1) An Order striking out the said Suit on the ground that the defendant is not a juristic person which can sue or be sued,

2) An Order dismissing the said Suit for being statute barred, and

3) Such other order as the Court deemed fit to make.

In the course of the proceedings at the Court below it become necessary to amend the writ of summons and the Statement of Claim so as to reflect the correct name that the defendants are known as United Bank for Africa Plc. Parties on both sides were agreed that such amendment should be effected.

The question of the nomenclature by which the defendants are known having been sorted out the coast was now clear for the Court below to address the only prayer now left the motion paper and that is the prayer for an order dismissing the suit for being statue barred.

The Court after taking arguments of Counsel on both sides in a considered Ruling delivered on Monday 4th June, 2012 refused the application and directed proceedings to continue but defendants, not happy with that Ruling of Court lodged an appeal to this Court vide the Notice of appeal dated 10th July, 2012 and filed on the 20th July, 2012. The Notice of Appeal contains 2 (two) grounds. Shorn of the particulars, the 2 (two) grounds of appeal are as follows:-

1) The learned trial Judge erred in law in holding that the present action in retinue in which the cause of action accrued more than six years earlier could be entertained because parties in the meantime exchanged correspondence in which the defendant acknowledged that it was searching for the documents concerned.

2) The Lower Court misconstrued the law by holding that failure by the Plaintiff to pay in full fees prescribed by the High Court Rules on the processes filed by him upon late filing was a matter of mere technicality whereby did not stop the Suit from proceeding to trial even though objection was taken timeously.

The appellant formulated 2 (two) issues in the brief of argument dated the 30/10/2012 and filed on the 6/11/2012 while the Respondent by the brief filed on the 5th June 2013 identified 2 (two) issues akin to those formulated by the appellant. In view of the similarity of issues distilled by parties on either side, I shall address this appeal based on the 2 (two) issues earmarked for determination by the Appellant.

ISSUE NO. 1:-