Brewtech Nigeria Limited V. Folageshin Akinnawo & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Federal High Court delivered on the 28th May, 2009 by HON. JUSTICE I. N. AUTA wherein the claim of the plaintiff was dismissed. Dissatisfied with the judgment the Appellant filed a Notice of appeal dated 13th September, 2011 setting out 7 grounds of appeal.

The Appellant took out a writ at the trial Court against the Respondents and by its amended statement of claim dated 25th of June 2007 sought the following reliefs:

i. A declaration that in the absence of a legal charge over the property of the Plaintiff, the letter of offer of N10,000,000.00 (Ten million naira) overdraft facility dated 30th January 2004 by the 2nd defendant and its acceptance by the Plaintiff constitute a simple as a mere creditors and the Plaintiff as mere debtor.

ii. A declaration that the Deed of Appointment of the 1st Defendant as Receiver/Manager is null and void as no Receiver/Manager can be appointed as a means of enforcing the repayment of any banking facility not secured by any charge.

iii. A Declaration that the purported Deed of fixed and Floating Debenture relied upon by the

2nd Defendant in appointing the 1st Defendant as Receiver/ Manager is invalid, null and void for noncompliance with the provision of CAMA 1990.

iv. A Declaration that the purported Deed of Fixed and Floating Debenture being relied upon by the 2nd Defendant in enforcing the repayment of the N10,000,000.00 (ten million Naira) overdraft facility is inadmissible in evidence in so far as it failed to comply with the provision of the Lagos State Lands Instrument Registration Law.

v. A Declaration that the invasion and occupation of the premises of the Plaintiff from to January to 26th April 2006 by the 1st Defendant based on an invalid document under which the power to appoint him was said to arise as well as an invalid disruption of the Plaintiff?s business activities and deprivation of peaceful enjoyment by the plaintiff.

vi. An order nullifying the purported appointment of the 1st defendant in furtherance of the said appointment by the 2nd defendant.

vii. An order nullifying all the actions taken by the 1st Defendant in furtherance of the said appointment by the 2nd defendant.

?viii. An order nullifying the purported deed of fixed and floating debenture

purportedly dated 22nd February 2005.

ix. An order compelling the defendant to refund the sum of N4,438,906. 16 (four million four hundred and thirty thousand nine hundred and six naira sixteen kobo only) being expenses purported to have been incurred by the 2ND Defendant on the purported deed of fixed and Floating debenture and in connection with the purported appointment of the 1st debenture and in connection with the purported appointment of the 1st defendant as the Receiver/manager as shown in the Plaintiff?s statement of Account for the period in question.