Carnco Foods (Nig) Ltd V. Mainstreet Bank Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment)

The Suit No.LD/502/2010, the subject matter of this appeal emanated from the High Court of Lagos State, by Writ of Summons and Statement of Claim dated 16th March, 2010.

The appeal is against the decision of M. O. Obadina J. (Mrs.) of the 20th day of January, 2011, contained in a Ruling, striking out the suit for failure to join the proper parties.

Simply put, the brief facts of the case is that, vide a Deed of Appointment by the 2nd Respondent, the 1st Respondent was appointed the Receiver/Manager of NEWSPIN LIMITED. This was pursuant to the provisions of a General Debenture dated 9th of March, 1995.

The 2nd Respondent offered to assign to the Appellant its interest in the property at Plot 14, Iganmu Industrial Estate, Surulere, Lagos for a period of 18 years. The sum of N37 Million was paid by the Appellant as consideration for the sublease, vide medium term loan facility.

The Appellant was put in physical possession of the property in December 2001.

In the same year NEWSPIN LIMITED, the Company in receivership instituted a suit at the Federal High Court Lagos, against the Defendants herein, and in which the Appellant was joined as a party.

In 2005, acting on the instruction of the Chief Executive Officer of NEWSPIN LIMITED, armed hoodlums broke into the property and locked up about 85% of the entire Warehouse complex.

Up till date, the Appellants and its tenants, having been denied access into the property.

That by the Deed of Sublease executed in 2001, between NEWSPIN LIMITED through the Receiver Manager, the 2nd Respondent and the Appellant, the sublessor covenanted that the sublessee shall peaceably exercise and quietly enjoy the demised premises, without any interruption or disturbance by the sublessor, or any other person or persons claiming under, or in trust for it. The Respondents have failed to pass a good title to the Appellant, who has suffered damages as a result of the various law suits which he did not envisage or intend. As a result of the forcible re-entry by the Respondent’s customer, Appellant lost all the rental income it was to have earned from the Warehouses.

As a result of this, the Appellant herein filed a suit at the High Court of Justice, Lagos State, claiming inter alia, general and special damages against the Respondents for breach of contract.

However, by motion on notice dated and filed on the 1st of April, 2010, the Respondents herein filed a motion on notice praying the Court to strike out the suit on the Ground that the proper parties were not before the Court pages 113 – 114 of the Record of Appeal. The Appellant filed a counter-affidavit to the Motion as well as a written address – pages 149 – 157 of the Record of Appeal.

The lower Court upheld the objection of the Respondents and struck out the suit.

The Appellant is dissatisfied with the Ruling and has appealed same.