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CaseLaw

Bank of Ireland V. UBN Ltd (1998) CLR 9(d) (SC)

Brief

  • Interlocutory appeal
  • Issue of jurisdiction
  • Leave
  • Unconditional appearance
  • Third party proceedings

Facts

Sometime in 1981, the plaintiff company entered into a contract with another company Kingscourt Construction group (Export) Limited, Ireland for the supply of some products at an agreed price. The plaintiff was required to make an advance payment in the sum of $566,250 (US. dollars). In line with the prevailing rules of the Central bank of Nigeria, the plaintiff was required to obtain a guarantee from a reputable bank abroad before the advance payment could be made. The plaintiff approached the defendant (Union Bank) its bankers, which then obtained the necessary guarantee from the bank of Ireland, the 3rd party herein. The foreign currency was thereafter remitted by the defendant through the 3rd party to be paid over to the ultimate beneficiary, the Kingscourt Ltd., which had since failed in breach of its contract to supply any goods to the plaintiff. It had also failed to refund the money paid. Accordingly, the plaintiff issued a writ of summons against the defendant in the Benin High Court seeking for a declaratory order and an order directing the defendant to pay the current value of the aforesaid sum together with interest to the plaintiff. The plaintiff averred that the defendant bank had been negligent in the handling of their contract with them. The defendant denied that. The defendant is holding the 3rd party to its guarantee under which it undertakes to repay the money herein. It is doubtless therefore that the 3rd party featured prominently in the pleading of both the plaintiff and the defendant. The defendant consequently applied ex parte to the High Court to have both the 3rd party and Kingscourt Ltd. joined as third parties to the action. The ex parte motion was heard on 16th May, 1991 and granted.

When served with the Third Party Notice, the appellant entered appearance through its counsel who then filed an application seeking to strike out the appellant from the suit. This was later withdrawn and struck out.

Appellant also filed another application seeking

  • 1
    "That the third party notice/write served on the third party/applicant is null and void for non-compliance with the rules of this honourable court as well as the Sheriffs and Civil Process Act concerning service out of the jurisdiction.
  • 2
    That the alleged cause of action did not arise within the jurisdiction of this honourable court.
  • 3
    That this honourable court has no jurisdiction over the third party/applicant who is neither resident nor carrying on business within the jurisdiction whether through an agent or otherwise.
  • 4
    That the proper place for the defendant to sue the third party/applicant is in the courts of the Republic of Ireland since any order made or judgement given by this honourable court will be nugatory and unenforceable.
  • 5
    That the action against the third party/applicant cannot conveniently be tried with the action filed by the Plaintiff/respondent in this suit.

AND for such further or other orders as this honourable court may deem fit to make.".

The trial court dismissed the application.

Appellant appealed unsuccessfully to the Court of Appeal.

It further appealed to the Supreme Court.

Issues

  • 1
    Was the Third Party Notice properly issued and served on the appellant...
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