Alims Nigeria (Limited) Vs United Bank Of Africa (2013)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Benin Division delivered on 6th June, 2006 wherein the judgment of the High Court of Justice, Auchi, Edo State delivered on 1st August, 2003, was affirmed.

At the on-set, the appellant as plaintiff filed an action against the respondent in Suit No. HAU/72/95 wherein, it claimed, inter alia, as follows:-

“(1) A declaration that the Deed of Floating Debenture executed between the plaintiff and the defendant dated the 25th day of November, 1996 and registered as Instrument No.25 at page 25 in volume 714 of the Lands Registry in the office at Benin-City, do not allow the defendant to unilaterally alter the status of the debt from loan to overdraft thus attracting higher interest.

(2) A declaration that the defendant’s computation of interest on the facilities granted to the plaintiff, is arbitrary and without legal basis.

(3) Injunction restraining the defendant, its servant and/or agents from carrying out its threats to enforce its rights in the deed of floating debenture and legal mortgage.”

On 24th November, 2000, all the three reliefs were granted by the trial Judge – Okunega, J. The respondent’s counter-claim in the same suit was dismissed. The respondent in that suit felt unhappy and appealed to the Court of Appeal vide the Notice of Appeal dated 20th December, 2000 and filed on 24th January, 2001.

Later on, the appellant filed another action, an Originating Summons to wit: Suit No. HAU/15/2003 against the respondent wherein it claimed the following reliefs:-

“(i) A declaration that the plaintiff is entitled to a release of its property registered as No. 25 at page 25 in volume 714 of the Lands Registry in the office at Benin-city which was a subject of litigation at the High Court of Justice, Auchi in Suit No. HAU/72/95 ALLIMS NIGERIA LTD. VS. UNITED BANK FOR AFRICA PLC decided by Hon. Justice Aliu Okunega on the 25th day of November, 2000 and presently being retained in the custody of the defendant.

(ii) An order of this Honourable court directing the defendant to release to the plaintiff forthwith the aforementioned title deeds.”

The Originating Summons was supported by an affidavit of 12 paragraphs deposed to by one Alhaji Idris Momodu, appellant’s Chairman/Managing Director. A copy of the judgment of Okunega, J. was attached and marked as Exhibit ‘A’. On 1st August, 2003, Idahosa, J. struck out the later suit on ground of lack of jurisdiction to pronounce on the earlier judgment in Suit No. HAU/72/95, inter alia, which happened to be subject of appeal before the Court of Appeal.

The appellant felt unhappy and appealed to the court below which heard the appeal and dismissed same on 6th June, 2006. It is against the judgment of the Court of Appeal that the appellant has further appealed to this court. The appellant’s Notice of Appeal, dated 16th June, 2006, which carries one ground of appeal, was filed on 19th June, 2006. The ground of appeal without the attendant particular reads as follows:-

“(1) The Court of Appeal misdirected itself when it held that the learned trial judge could suo motu raise the issue of jurisdiction in the instant case and therefore declined to interpret an earlier judgment of the trial court.”

On 22nd October, 2012 when this appeal was heard, learned counsel on each side of the divide adopted and relied on the brief of argument filed on behalf of his client. The appellant’s counsel urged that the appeal be allowed while the respondent’s counsel urged that same be dismissed. There was no shred of further oral submission by any of them.