Chiemeka Tapauline Ind. Nig. Ltd. V. Union Bank Of Nigeria Plc. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the decision of Hon. Justice J. T. Isoho sitting at the Federal High Court Umuahia on the 19th day of October, 2004.

The facts that led to this appeal are as follows:

The Plaintiff commenced an action on 31/5/01 claiming against the Defendant the following reliefs:

(i) A declaration that the Plaintiff is the duly appointed Receiver by virtue of a Deed of Appointment dated 27/4/2001 made by the Union Bank of Nigeria Plc, pursuant to clauses 7 and 3(v) of the Deed of Legal Mortgagee/3rd party Legal Mortgagee respectively and clause 6 of the Deed of Floating Debenture by which the Defendant charged in favour of the said Union Bank of Nigeria Plc ALL its properties undertaking and its and other assets including book debts and uncalled capital fixed plants and machinery and all its stock in trade or otherwise under its control both present and future as a floating security and the properties described in the Deeds of Legal Mortgage as a fixed security securing such sums of money advanced to the Defendant with other liabilities together with interest to the Bank thereof.

(ii) An order of court permanently restraining the Defendants, its agents, workmen and/or privies from further disturbing or interfering with Plaintiff’s discharge of his duties under the Receivership”. (Record Pg. 2)

On the same date when the Writ of Summons was filed, the Plaintiff filed a motion ex-parte without filing any motion on notice. In the motion ex-parte, the Plaintiff prayed as follows:

“For an order of court restraining the Defendants, its agent, workmen and /or privies from disturbing or interfering however with the Plaintiff/Applicant in the discharge of his duties under the Receivership pending the determination of the motion on notice.

And for further or other orders as the Honourable Court may deem fit to make in the circumstances. (Record Pg. 3)

The trial Court granted this ex-parte application made by the Plaintiff on the 7th day of June, 2001 and made the following orders:

“It Is Hereby Ordered As Follows:-

(i) That the application is granted as prayed.

(ii) That the Defendant, its agents, workmen and /or privies are restrained from disturbing or interfering however with the Plaintiff/Applicant in the discharge of his duties under the Receivership, pending the determination of the Motion on Notice.

(iii) That the order of court is not to be enrolled except upon the filing of the Motion on Notice which will be served together with order.