Alims Nigeria Limited V. United Bank For Africa Plc (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Edo State High Court, sitting at Auchi in respect of suit No. HAU/15/2003, delivered on 1st August, 2003.

The appellant was the plaintiff at the court below, where vide an originating summons, the following reliefs were prayed for, to wit:

“(i) A declaration that the plaintiff is entitled to a release of its property registered as No. 25 at page 25 in volume 714 of the Lands Registry in the office at Benin City which was a subject of litigation at the High Court of Justice, Auchi in Suit No. HAU/72/95 ALIMS NIGERIA LTD. V. UNITED BANK FOR AFRICA PLC decided by Hon. Justice Aliu Okunega on 24th day of November, 2000 and presently being retained in the custody of the defendant.

(ii) An order of this Honourable Court directing the defendant to release to the plaintiff forthwith the aforementioned title deed.”

There is an affidavit of 12 paragraphs filed by the appellant in support of the originating summons. The depositions in the said affidavit are that:

“I, Alhaji Idris Momodu Nigerian and Chairman/Managing Director of ALIMS NIGERIA LIMITED of kilometer 124, Benin/Okene Road, Aviele do hereby make oath and state as follows:

1. That I am the Chairman/Managing Director of the Plaintiff in the aforementioned civil matter and therefore I am very conversant with the facts of the case.
2. That I have the consent of the plaintiff to depose to this affidavit.
3. That the plaintiff instituted an action against the defendant sometime in 1995 at the High Court of Justice, Auchi.
4. That the defendant raised a counter claim against the plaintiff at the hearing of the said civil suit.
5. The learned trial judge in a considered judgment granted the plaintiff’s claims and dismissed the counter claim of the defendant but held that the plaintiff was liable to the defendant in the sum of N298, 745.00k.
6. That a copy of the said judgment is herewith attached and marked as Exhibit “A”.
7. That the Plaintiff in obedience to the said court judgment immediately paid to the defendant the aforesaid sum of money.
8. That a copy of the letter forwarding the cheque to the defendant is herewith attached and marked as Exhibit “B”.
9. The defendant has since failed, refused and/or neglected to release the plaintiff’s said title documents in spite of repeated demands.
10. That the defendant would continue to hold the plaintiff’s title deed in its custody unless this Honourable Court directs it to effect its release to the plaintiff.
11. That it is in the interest of justice for the defendant to release the aforesaid title deed.
12. That I make this solemn declaration conscientiously believing the same to be true and in accordance with the provisions of the Oaths Act, 1990.”

In response to the appellant’s claim, the respondent filed a 10 paragraph counter-affidavit, to wit:

“I, Junji Badru, Male Christian, a member of staff of United Bank for Africa Plc, Benin City Branch, a citizen of the Federal Republic of Nigeria residing at 36 Ogbehon Street, Benin City, do hereby make oath and state as follows:

1. That I am Loan Recovery Manager in the service of the Defendant.
2. That I have the authority and consent of the Defendant to make this affidavit.
3. That I am conversant with the facts of this case by virtue of my position as a Loan Recovery Manager.
4. That I have read the summons filed by the plaintiff together with the supporting affidavit.
5. That paragraphs 1, 2, 3, 4, 6, 7 and 8 of the affidavit in support of the summons are admitted.
6. That paragraph 5 of the supporting affidavit is admitted to the extent that Defendant’s Counter claim was dismissed in part by the award of N298,745.00 against the Plaintiff.
7. Further to paragraph 7 of the supporting affidavit, the Defendant in a letter to Plaintiff’s Solicitor, dated 26th January, 2001, acknowledged and accepted in protest the cheque for the N298,745.00.
8. That a copy of the said letter is hereby exhibited and marked as Exhibit ‘A’.
9. With reference to paragraph 9, 10 and 11 of the supporting affidavit, I state as follows:

(i) That in the Counter claim referred to by the Plaintiff, the Defendant claimed an amount of N13,370,187.75.

(ii) That the Plaintiff did not say, in its Writ of Summons and Statement of Claim hereby exhibited and marked as Exhibits ‘B’ and ‘C’ respectively that it owed the Defendant the sum of N298,745k only – the amount of money the trial court asked the Defendant to pay the Plaintiff.

(iii) That the Defendant lodged an appeal against the judgment of the Auchi High Court and the Plaintiff is aware or knows of that fact.

(iv) That the Defendant knows also that the appeal is still pending; in other words, the appeal has not been heard and determined.

(v) That a copy of the Notice and Grounds of Appeal is hereby exhibited and marked as Exhibit ‘D’.