United Microfinance Bank Limited Ekpan V. MR. Duke Adjaka (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering The Leading Judgment)

This is an appeal against the judgment of the Federal High Court, Asaba Division delivered on 30th November, 2011. The facts as gleaned from the Records of Appeal disclose that the Respondent, who was the Plaintiff at the Lower Court, was awarded a contract for the construction of culvert by the Uvwie Local Government Council of Delta State. He entered into an understanding with one Lucky Adjekuko and Henry Baro for the execution of the said contract.

The terms of their understanding inter alia, included that payments on the contract would be made in the Respondent’s Business Name, Ovi-Dus Electro Mech (Nig) Enterprises. The Uvwie Local Government Council made a part payment of N1.52m and issued the cheque in the Respondent’s Business Name.

Lucky Adjekuko collected the said cheque and without the knowledge of the Respondent opened an account with the Appellant in the Business Name of the Respondent, paid in the cheque and withdrew the value of the said cheque. Efforts made by the Respondent to recover the value of the cheque failed, consequent upon which he instituted proceedings contending that the Appellant was negligent in opening the account in his Business Name for Lucky Adjekuko and claiming monetary compensation from the Appellant.

After an inter partes hearing, the Lower Court entered the chafed judgment in favour of the Respondent. Being dissatisfied with the judgment, the Appellant appealed against the same on 23rd February, 2012. The Records of Appeal were compiled and transmitted on 28th June, 2012, but deemed as properly transmitted on 5th February, 2013, filed on 4th March, 2013 but deemed as properly filed on 5th February, 2014.

The parties filed and exchanged briefs of argument. The Appellant’s Brief is dated 25th February, 2013, filed on 4th March, 2013 and deemed as properly filed and served on 5th February, 2014. The Appellant also filed a Reply Brief which is dated 16th April, 2014, filed on 17th April, 2014 and deemed as properly filed on 9th February, 2015. The Respondent’s Brief of Argument is dated and filed on 12th February, 2014.

At the hearing of the appeal, D.O. Jarikre, Esq., of Counsel who appeared for the Appellant adopted the submissions in the Appellant’s Briefs which were both settled by Chief V.E. Otomiewo and he urged the Court to allow the appeal and set aside the judgment of the Lower Court. In the same vein, C. Aghoja, Esq., learned Counsel for the Respondent adopted the submissions in the Respondent’s Brief and he urged the Court to dismiss the appeal and affirm the judgment of the Lower Court.

The Appellant distilled six issues for determination as follows:

“1. Whether the suit as constituted at the trial court is not incompetent and/or an abuse of the process of court.

2. Whether the learned trial judge was right when he held that there is a valid claim albeit not categorized as special or general damages,when the Respondent’s actions was founded on the tort of negligence.
3. Whether the learned trial judge was right to have awarded a pre-judgement interest when such was not specifically pleaded and proved or contemplated by parties.
4. Whether the learned trial judge was right and have not descended into the arena when he suo motu raised the issue of date and handwriting in Exhibits D & G to hold that the particulars of negligence stated by the Respondent and evidence led on them conclusively prove the breach of duty of care which the Appellant owed the Respondent.
5. Whether the Respondent has sufficiently proved the duty of care as to the relationship between the Appellant and the Respondent for the learned trial judge to infer that the relationship is sufficiently proximal to impose the duty of care.
6. Whether by the Respondents own admission that this suit was also brought against Lucky Adjekuko and Henry Baro at Effurun High Court and judgment had against them, this present suit against the Appellant does not constitute an abuse of court process.”

The Respondents adopted the six issues formulated by the Appellant and replied to the same in the Respondent’s Brief. I will therefore resolve this appeal based on the issues formulated by the Appellant. A convenient starting point would be Issue Numbers One and Six which raise the threshold issue of competence of the action. I would therefore take the said issues together.

ISSUE NUMBERS ONE AND SIX

Whether the suit as constituted at the trial court is not incompetent and/or an abuse of the process of court.

Whether by the Respondents own admission that this suit was also brought against Lucky Adjekuko and Henry Baro at Effurun High Court and judgment had against them, this present suit against the Appellant does not constitute an abuse of court process.

SUBMISSIONS OF THE APPELLANT