Access Bank Plc V. Vicapek International Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report

JAMES SHEHU ABIRIYI, J.C.A. 

This is an appeal against the judgment delivered on the 9th March, 2012 in the High Court of Osun State holden at Osogbo wherein the Respondents were the Plaintiffs while the Appellant was the Defendant/Counterclaimant.

The claim of the Respondents against the Appellant was for the following:
(i) A declaration that by the terms and condition of the Forth (sic) Three Million Naira (N43,000,000.00k) Bankers Acceptance Facility agreement entered between the Claimant and the Defendant which agreement was executed by the Claimant at Osogbo on 21st December, 2007, the Claimant is not in any way, form or manner indebted to the Defendant.
(ii) A declaration that by terms of the written agreement between the Claimant and the Defendant the collateral securities for the said facility are the Claimant’s shares at Zenith Bank Plc, Professional shares purchased by the Defendant’s subsidiary Intercontinental Securities Limited and no more.
(iii) An order directing the Defendant to give a true and accurate account of the value of the Claimant’s shares in its

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custody at the expiration of the tenure of the said facility and to pay the balance (if any) into the account of the Claimant.
(iv) An order of perpetual injunction restraining the Defendant, by itself, its solicitors (especially Wilson Atirene of the law firm of WILSON ATIRENE & CO) agents, representatives or privies and the Law Enforcement Agents from further harassing embarrassing and arresting the Claimant, its agents representatives or privies as a result of the facilities which is the subject matter of this suit or any matter relating thereto.
(v) The sum of Five Hundred Million Naira Only (N500,000,000.00) being general and special damages for the arrest, assault, defamation, deprivation and tribulation of the 2nd Claimant as a result of the her (sic) arrest detention and humiliation suffered consequent upon her travails on 9th of September, 2009 in the premises of the Eagles Squad of the Osun State Police Command, Osogbo.
(vi) Another sum of N20,000,000.00 being special damage in consequence of the defendants failure or default to sell the shares at the expiration of the tenor of the facility which sum of money would have accrued as

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profit on the said date to the 1st Claimant.

PARTICULARS OF SPECIAL DAMAGES
1. Medical bills, drugs and other expenses as (sic) different hospitals N5,000,000.00k
2. Expected profit to the 1st Claimant from Sales of shares within N20,000,000.00k
GENERAL DAMAGES N495,000,000.00k
TOTAL N520,000,000.00k

The Appellant’s counterclaim against the Respondents was for the following:
a. The Sum N83,931,930.10 (Eighty Three Million Nine Hundred and Thirty One Thousand Nine hundred and Thirty Kobo) as at 31st day of July, 2010.
b. Claim of 17% on the sum of N83,931,930.10 (Eighty Three Million Nine Hundred and Thirty One Thousand Nine hundred and Thirty Kobo) from the 31st day of July 2010 until judgment of the Court is pronounced.
c. Claim of 10% per annum on the adjudged sum until the judgment sum is finally liquidated.
d. DECLARATION that in the event that the value of the Zenith shares over which defendant exercise a lien does not completely pay off the adjudged sum, the defendant shall be entitled to sell whatever asset of 1st claimant available.

The case of the Respondents through their lone witness was that

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the 1st Respondent was and still is a customer of the Appellant. By an agreement between the parties the Appellant advanced the sum of N43 million which was to be transferred to Intercontinental Securities Limited for the purchase of shares. The 1st Respondent was asked to submit an irrevocable letter authorizing the Appellant to sell the existing shares and remit the proceeds to its account and it complied. The Respondents also executed a document authorizing the Appellant to sell the pledged shares.

The tenor of the facility was six months and it therefore lapsed on 1st June 2008 which was the point at which the lien became enforceable.

Instead of the Appellant enforcing the lien, it held on to the shares purchased by its subsidiary Intercontinental Securities Limited until the stock exchange market started crashing on or about the 25th July 2008.

Repayment was conditioned upon the following factors;
(a) The exercise of power of sale of the shares by the Appellant immediately the value of the shares fell by 15% or
(b) The sale of the shares by the Appellant at the expiration of the six months tenor.

That if the Appellant had