Afribank Nigeria Plc V. Vesa Foods Agencies Ltd (2005)

LawGlobal-Hub Lead Judgment Report

PATRICK IBE AMAIZU J.C.A.

In order to appreciate this appeal, it is necessary to refer to the facts leading to the appeal. Briefly the facts are the plaintiffs claimed by a writ of summons as follows-

”The sum of N347,335,857.05 (Three hundred and forty seven Million, Three hundred and Thirty five thousand, Eight hundred and fifty seven Naira, five kobo), being balance sum owed and payable by the plaintiff, in respect of loan by way of overdraft facilities, granted by the plaintiff to the defendants, in Account No. 36:070-830-2 at Plaintiffs Ring Road Branch, Benin City, within the Jurisdiction of this Honourable Court, Corporate Main Branch A/C 36-270-392 Z, Short Term Working Capital A/C NO.31-310-053 F and MTL 75-100-47 merged account NO. MTLCD0109500034/ 0030015706313 at Lagos covered by Deed of Guarantees dated 7/1/88 – 1/9/90 and 1/9/90 executed by the 2nd and 3rd defendants etc, etc, etc.”

Later, the purchasers of the properties were joined through third party proceedings initiated against them.

1st to 4th defendants filed a joint Statement of Defence. The 1st defendant Counter-Claimed.

“Whereupon the 1st defendant claims as follows –

1) A Declaration that the 1st defendant is not indebted to the applicant warrant the due exercise of the power of sale over the properties deposited and/or pledged and/or mortgaged by the plaintiff and is therefore declaring purported sales of the properties as being liable to be set aside for being premature” grossly under valued, unlawful, null and void.

2) A Declaration that the 1st Defendant is entitled to the refund of all funds paid into its accounts with the plaintiff in excess of the actual amount granted as facility and permissible related charges with interests.

3) An Order directing the plaintiff to issue Deeds of Release forthwith in respect of properties mortgaged by or through the 1st Defendant in Port Harcourt and Benin City.

4) An Order setting aside and consequently directing the Deeds Registrar, Ministry of Lands, Port Harcourt to cancel the registration of the document evidencing the purported transfer by the plaintiff of the mortgaged properties being –

1) Property now registered as NO. 47 at Page 47 in Volume 272 of the Lands Registry, Port Harcourt.

2) Property now registered as NO. 48 at page 48 in Volume 272 in the Lands Registry. Port Harcourt; and to rectify the records of the properties at the Lands Registry Port Harcourt to reflect the cancel lotion.

5) An Order of perpetual injunction restraining the plaintiff/from howsoever purporting or deal with any of the properties belonging to or deposited or mortgaged by or through the 1st defendant to the plaintiff”

Upon an objection filed by the plaintiff bank and 3rd parties against the territorial jurisdiction of Benin High Court to adjudicate on the counter claim because it related to landed properties located in Rivers State the trial Court, by a Ruling delivered on the 17th day of March, 2003 upheld the objection. Part of the Ruling reads as follows –