Macgogo Nigeria Limited & Anor V. Indemnity Finance Limited (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal by the claimants/appellants against the judgment of the Lagos State High Court delivered on the 24th November, 2005, whereby the learned trial judge entered summary judgment for and in favour of the defendant/respondent in respect of its counter-claim and as per its prayer on the motion on notice for summary judgment dated and filed on the 19th May, 2005.

Deducing from the record of appeal, the claimants/appellants commenced the action in this suit by writ of summons dated 15th December, 2003 and filed on the 16th December, 2003. The statement of claim also dated 15th December, 2003 was filed together with the writ of summons on the same day and wherein the claimants/appellants claimed against the defendant/respondent the following reliefs:-

“(a) A declaration that, vide an agreement between the plaintiffs and the representatives and or agents of the defendant dated 1/9/2003, the plaintiffs are no longer indebted to the defendant for any amount of money as outstanding either as principal or interest in respect of the loan facility granted the 1st plaintiff and secured by the 2nd plaintiff with collaterals vide the defendant’s letter of offer of 3/12/98.

(b) A declaration in view of declaration (1) above that, the sum of ten million Naira (N10, 000, 000.00) paid by the 2nd plaintiff on behalf of the 1st plaintiff to the defendant vide an agreement of 1/9/2003, represented the full final payment on the loan facility of forty million Naira (N40, 000, 000.00) granted by the defendant to the plaintiff and secured by the 2nd plaintiff.

(c) A declaration in view of declarations 1 & 2 above that, the 1st plaintiff is entitled to the return of the titled deeds in respect of its vessels i.e. F. B. TOLU OJO, WB BRASS CREEK and TUG-ASARI (A tug boat) which were deposited with the defendant as collaterals or security on the forty million Naira (N40, 000, 000.00) loan facility.

(d) An order of this Honourable court on the defendant, ordering it to return to the plaintiffs the title deeds relating to TOLU OJO, WB BRASS CREEK and TUG-ASARI (A tug boat) without condition(s) which are still being held over by the defendant inspite of their persistent demands for their release after the agreement referred to in declarations 1 & 2 above has been executed by the parties to this suit.” Pages 4-7 of the records of appeal is in reference.

The defendant/respondent in its defence denied the totality of the claimants/appellants claims and also filed a counter claim to recover the outstanding sum of appellant’s indebtedness to it as a result of the loan transaction. The respondent in its Amended Counter Claim of 6th October, 2004 therefore claimed as against the appellants the following reliefs:

“(a) the sum of N35, 649, 731.26 (Thirty Five Million, Six Hundred and Forty nine Thousand, Seven Hundred and Thirty-one Naira, Twenty six kobo) being the debt owed by the claimants as at 31st March, 2004 arising from the sale and Leaseback Finance facility granted by the defendant/counter claimant to the 1st claimant on or about the 3rd day of December, 1998 which sale and Leaseback finance facility was personally guaranteed by the 2nd claimant.

(b) Interest in the sum of N35, 649, 731.26 (Thirty-five Million, Six Hundred and Forty Nine Thousand, Seven Hundred and Thirty-one Naira, Twenty-six kobo) at the rate of 40% per annum from 31st March, 2004 to the date of judgment and final liquidation of the judgment debt.” Page 54 of the record of appeal is in evidence.

While this suit was pending and after parties have exchanged pleadings, Lagos State enacted a new civil procedure rules for its High Court and both parties filed motions to comply with the new rules.

The learned trial judge however ordered the claimants to comply with order 3 rule 2 of the High Court of Lagos State Civil Procedure Rules, 2003 and front load its processes.

The claimants/appellants in compliance with the order of the lower court that the claimants/applicants should comply with order 3 rule 2 and front load its processes filed the said processes mentioned therein. Following the foregoing events, the defendant/respondent filed its motion on notice dated 19th May, 2005 for summary judgment. Pages 139-182 of the record of appeal is in evidence.

On the 24th November 2005, the lower court delivered its judgment, whereby it granted the prayer sought by the defendant/respondent in the motion paper; pages 266 to 272 of the record is evident. It is against the judgment and findings of the lower court that the claimants/appellants have filed the notice of appeal herein having being dissatisfied with the decision. The claimants/appellants shall henceforth be referred to as the appellants, while the defendant/respondent shall be referred to as the respondent herein.