Ogli Oko Memorial Farms Limited & Anor. V. Nigerian Agricultural And Co-operative Bank Limited & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

ONNOGHEN, J.S.C

This is an appeal against the judgment of the Court of Appeal holden at Jos in appeal No. CA/J/128/96 delivered on the 29th day of November, 1999 in which the court dismissed the appeal of the appellants against the judgment of the High Court of Benue state holden at Otukpo in suit No. OHC/55/95 delivered on the 23rd day of January, 1996 in which the court entered judgment in favour of the respondents, then defendants/counter claimants in default of defence thereto.

By a statement of Claim filed on the 3rd of July, 1995, the appellants, as plaintiffs, claimed against the defendants, now respondents jointly and severally as follows:-

“(a) A declaration that the plaintiffs are not indebted to the 1st defendant in the sum of one million, thirteen thousand, one hundred and twenty Naira, eighty kobo, N1,013,121.80) or any other sum as the amount of the plaintiffs indebtedness to the 1st defendant (if any) has not been determined and accepted by the parties as the sum being owed

(b) A declaration that at the interest rate prevailing when the sum was advanced, the amount of money being owed (if-any) is nowhere near the sum of =N=1,013,121.80 now being claimed by the defendant.

(c) A declaration that the one storey building property, lying and situate at No.1, Ogiri Oko Road, Makurdi which is covered by the Benue State statutory certificate of occupancy No. B.P 3232, was at no time mortgaged to the 1st defendant as a collateral or security for any facility granted to the plaintiffs.

(d) A declaration that the notices of auction dated the 17th day of July, 1994 and the 17th day of May, 1995 putting up the property described in sub-paragraph (c) above for sale as null, void and of no effect; the same having not been pledged as a collateral to secure any facility or loan.

(e) An order restraining the defendants or any of them from auctioning the property above referred to in sub-paragraphs (c) and (d) respectively.

(f) A declaration that the contract between the 1st plaintiff and the 1st defendant was frustrated by events which were unanticipated and uncontrollable by the parties, being an act of God, and that the 1st defendant was not entitled to cause any of the 1st plaintiff’s properties to be advertised for sale by way of auction or any other means and by any person or agent.

(g) An order of the court declaring that since the loss was not caused by the plaintiffs but an act of God, the consequent financial loss occasioned there from should be totally born (sic) by the 1st defendant.

(h) A declaration that even if it is established that a loan obligation exists between the 1st plaintiffs to the 1st defendant, the material rate of interest applicable to the loan shall be that agreed upon at the time the relationship between the 1st plaintiff and the 1st defendant commenced in 1987.

(i) An order directing the 1st defendant to return and/or release Certificates of occupancy No. 38/AD of the 12. 8. 86 and No. 228/87 of the 15.9.87 now in the 1st defendant’s possession to the plaintiffs.

(j) A declaration that no legal relationship exists between the 1st plaintiff and the 1st defendant. ”

On the 23rd day of October 1995 the respondents, then defendants filed a motion on notice before the trial court praying that court for the following orders: