Nasr V. B. Beirut-riyad Nig. Bank Ltd.diab Nasr V Iberini (Beirut-riyad) (Nig.) Bank Limited. (1968)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

The appellant was the plaintiff and the respondents the defendants in Lagos High Court Suit No. LD/571/66. The plaintiff had sued the defendants and his writ of summons was endorsed as follows-

“The plaintiff claims from the defendant the delivery of the original deed of lease dated the 16th May, 1962 and registered as MO. 2778 for Plots Nos XRL 3042 and 3043 situate at Apapa, Lagos. The plaintiff has made several demands for the return of the said deed of lease but the defendant has refused to deliver and still detains the same.”

Pleadings were ordered and filed and the defendants asked for and obtained the leave of court to file a counter-claim against the plaintiff. The pleadings filed include a statement of claim by the plaintiff, a statement of defence and counter-claim by the defendants and a reply to the statement of defence and defence to the counter-claim (with an amendment) by the plaintiff. The defendants’ counter-claim reads as follows:-

“he defendants’ counter-claim from the plaintiff is for the sum of £40,720.19s.4d whereof:-

(a) £32,616.5s.3d is total amount (Plus accrued interest) paid to one Joseph Naaman by the defendants at the instance of the plaintiff between 15th March 1965 and 28th September 1966 for the purpose of erecting six flats on the plaintiff’s land at Apapa with interest at 9 percent per annum till the date of judgment; and

(b) £8,094.14s.1d. is total of amounts (Plus accrued interest) paid by the defend-ants in respect of purchase price, premium and rents for the said land with interest at 9 percent per annum till date of judgment”.

Three witnesses apart from the plaintiff gave evidence in support of the plain-tiff’s case, but learned counsel for the defendants stated at the close of the plaintiff’s case that he would not call any evidence on behalf of the defendants. The evidence was therefore only given on the plaintiff’s side and the main issues on which the claims and counterclaims depended were extensively discussed in the addresses of counsel on both sides. In a reserved judgment Kazeem, Ag. J. (as he then was) dismissed the claim of the plaintiff and gave judgment with costs against him in favour of the defendants on the counter-claim, stating at the end of his judgment as follows:-

“In the circumstances, I find that the defendants are entitled to restitution in the sum of £28,916.18s.3d advanced in respect of the building and fittings, and in the sum of £6,377.16s.1d. advanced in respect of purchase of land, premium and rent plus interest at the rate of 9 percent per annum up to the date hereof and judgment is hereby given to them accordingly”.

The plaintiff has appealed to this court against both the dismissal of his claim and the awards to the defendants on the counter-claim. Several grounds of appeal were filed and argued on his behalf. After some argument before us, however, timed counsel for the plaintiff conceded that the plaintiff was not entitled to the return of the document he sought when he commenced the action and therefore gave up the appeal against the dismissal of the claim. The circumstances under which the defendants came to be in possession of the deed of lease on which the claim was founded, as well as the conditions of its redeemability, are all clear issues of fact and of law and we do not conceive that the judge’s findings of fact and his application of the law in that connection can be seriously impugned. It is little surprising therefore that counsel abandoned this part of his appeal. We will formally dismiss the plaintiff’s appeal in that respect with costs which we will deal with in our final order on the appeal.

The legal controversy on appeal centred on the counter-claim. In his statement of claim the plaintiff had pleaded, in paragraphs 4 and 6 as follows:-

“4. The plaintiff is the owner of two plots of leasehold land Nos XRL 3042 and 3043 situate at Apapa, Lagos and registered on the 16th Of May 1962 as Title No. MO 2778 at the Federal Land Registry, Lagos.

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6. On the .21st June 1965 the plaintiff, as usual, entrusted his original deed of title No. MO 2778 in respect of his Plots Nos. 3042 and 3043 situate and lying at Apapa and registered in the Land Registry, Lagos on the 16th May, 1962 to the defendant to be kept in safe custody. The defendant acknowledged receipt of same in writing bearing the date 21st June, 1965”.