Adalma Tankers Bunkering Services Ltd & Anor V. Cbn & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Calabar Division or Court below or lower Court, delivered on Tuesday, the 19th May, 2009 Coram: Kumai Bayang Akaahs JCA (as he then was), Jean Omokri and Theresa Ngolika Orji-Abadua JJCA on appeal from the Federal High Court, Calabar, per C.C. Nwogwugwu J.

FACTS BRIEFLY STATED

The appellants were the plaintiffs at the trial Court and commenced the action in that Court by the particulars of claim filed on 15/7/1987. The reliefs claimed by them were contained in the Further Amended Statement of Claim and are as follows:

(a) A Declaration that the Defendants wrongfully took over and operated the 1st Plaintiff’s Lagos Account No. 1671 opened at 1st Defendant’s Lagos branch without allowing the 1st Plaintiff’s to further use or operate or do business with the said account No.1671.

(b) AN ORDER directing the Defendants to refund to the Plaintiffs the following sum/sums of money plus interest beginning from the date of transfers until judgment is delivered:

i. The sum of $88,506,88 transfer by Draft No.5082/1827 or its Naira equivalent in the sum N7,257,547.76 (Seven million, two hundred and fifty-seven thousand five hundred and forty-seven Naira, seventy-six Kobo) only based on an exchange rate of N82, to a Dollar.

ii. $32,184.00 transferred by Draft No. 00000782 or its Naira equivalent in the sum of N2639,088 (Two million, six hundred and thirty-nine thousand, and eighty-eight Naira) only based on an exchange rate of N82, to a Dollar.

iii. $179,615.70 transferred by Draft No. 5904/204 or its Naira equivalent in the sum of N14,728,487.40 (Fourteen million, seven hundred and twenty-eight thousand, four hundred and eighty-seven Naira, forty Kobo) only based on an exchange rate of N82 to a Dollar.

iv. $806,080 per payment on L/C/24/78 or its naira equivalent in the sum of N66,098,560 (Sixty-six million, and ninety-eight thousand, five hundred and sixty Naira) only based on an exchange rate of N82 to a Dollar.

v. N351,841.00 through I. J. Johnson and through letters of credit amounting to N1,631,588.21 and together N1,983,339.21 (One million, nine hundred and eighty-three thousand, three hundred and thirty-nine naira, twenty-one kobo). See pages 176-181 of the records. There were six Defendants to the suit at its inception. They are the 2nd and 4th Respondents as well as 2nd Appellant herein and 4th, 5th and 6th Respondents at the lower Court. The 4th Respondent as the 4th Defendant, though served with the process did not appear at all throughout the proceedings. The 2nd and 4th Respondents as well as the 3rd, 5th and 6th Respondents at the lower Court entered appearance as 1st, 2nd, 3rd, 5th and 6th Defendants respectively and were all represented jointly by counsel up to a point, after which the said Counsel without any notice of withdrawal of his appearance for other Defendants, reduced his appearance to that of the 1st defendant (now 2nd Respondent) alone.

The 1st Defendant filed an Amended Statement of Defence to the suit while the other Defendants filed no defence. This case remained for so long from 1987 on the cause list and did not proceed to trial until 1996. It went through 6 Judges of the Court in that process before it was finally heard by Hon. Justice G.O. Ezekwe.

The Plaintiffs called 2 witnesses in proof of their case. The 1st Defendant filed a defence to the suit and appeared by its counsel when trial commenced but subsequently stayed away from Court without any excuse. The other Defendants did not appear at all despite having notice of the proceedings.

While the trial was on-going, the 1st Respondent in this appeal declared the 2nd Respondent (1st Defendant) a distressed bank and bought it over for N1.00 for the purpose of its revitalisation. It then appointed 3rd Respondent as its Manager for the purpose of this revitalisation.