Chrome Air Services Limited & Ors V. Fidelity Bank PLC (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment)

FACTS OF THE CASE:

Sometime in 1999 the 1st appellant applied for temporary overdraft facility from the then FSB International Bank Plc. for the sum of N78, 000,000; the respondent subsequently acquired the FSB; subject to a guarantee by the 3rd appellant, who deposited his certificate of occupancy No. FCT/ABU/CR.296 over Plot No.756 Maitama A5 District, Abuja and certificate of occupancy No. FCT/ABU/NG.488 over plot 71, 3A Garki 11 District, Abuja.

Failing to repay the loan FIDELITY BANK PLC, the defendant/respondent instituted an action against Chrome Air Services and Chrome Oil Services, the 1st and 2nd appellants respectively along with three other defendants on the 4th of October, 2004 in suit No. FCT/HC/CV/1123/2004 before the Federal Capital Territory High Court for N67, 099.169.09 as debt.

While this was going the Chrome Air Services Ltd, the Plaintiff/Appellant entered into a Memorandum of settlement with FSB International Bank Plc. The Defendant/Respondent for the payment of N50,000,000 as full and final payment (Exhibit C Before The Trial court). The Appellants made the agreed payments and suit No. FCT/HC/CV/1123/24 was struck out thereafter for abandonment, Exhibit D.

The respondent claims Chrome Oil Services Ltd, the 2nd Appellant became liable to Fidelity Bank plc, counter claimant to pay S1,000,000 in a separate transaction, which the 3rd Appellant guaranteed by depositing an additional certificate of occupancy No. FCT/ABU/MISC-5178 in respect of plot No. 505 Cadastral Zone AO Abuja; the Appellants contend the Respondent brought this up only because they demanded for the release of the title documents, in spite of the fact that this claim is relief number (ii) in Suit No. FCV/HC/CV/1123/2004.

The trial court entered judgment for the respondent for S1,000,000, but also ordered the respondent to release the Appellants, Certificate of Occupancy plus N500,000 damages.

This appeal is against this judgment, wherein the appellants filed four grounds of appeal from which three issues were distilled for determination by this court. The issues are:

1. Whether the lower court was right when it held that the relief for the payment of S1,000,000 succeeds against the 2nd and 3rd appellants; and in ordering the 1st and 3rd appellants to pay the said sum of S1,000,000 plus interest at the rate of 5%.
2. Whether the court below was right when it held that the 2nd and 3rd appellants failed to challenge the veracity of Exhibits O and Q and consequently found the respondent in its counter claim for the sum of S1,000,000 and interest without consideration of available evidence before the court and without proper evaluation of Exhibit O and Q.
3. Whether the court below was right when it held that there was no record of any signature which both parties agreed is the genuine signature of the 3rd appellant with which the court could compare the signatures in Exhibits O and Q.

ISSUE ONE:

Whether the lower court was right when it held that the relief for the payment of S1,000,000 succeeds against the 2nd and 3rd appellants, and in ordering the 1st and 3rd appellants to pay the said sum, and interest at the rate of 5%.

It is argued for the appellant on issue one that the trial court failed to find whether the 1st Appellant, a separate entity from the 2nd Appellant owed the respondent S1,000,000; especially as no evidence was led, neither was it pleaded by the respondent that it was owed S1,000,000; even though it found that the 2nd appellant owed the respondent S1,000,000 as per page 255 of the record.

Yet the trial court ordered the 1st and 3rd Appellants to pay the respondent S1,000,000, shifting the finding of liability on the 2nd Appellant as if the 1st and 2nd Appellants are the same. Learned counsel urged this court to hold that the order that the 1st Appellant pays the respondent S1,000,000 is without any legal basis, especially he argued, because the pleadings of the respondent taken as whole cannot sustain the claim of S1,000,000.

Learned counsel submitted while referring to AJIDE v KELAANI (1985) 3 NWLR part 12 248 and TOWOLANI V SAIPE S.P.A (2003) 34 at 48 that the respondent is not entitled to any award, because the evidence of DW1, is contradictory and inconsistent in law.

That the respondent referred to the S1, 000,000 in paragraphs 15, 16, 17 and 19, without pleading any contractual basis for the amount alluded, notwithstanding which the claim was refuted by the 1st and 2nd appellants, as well as the 3rd; that in any event the contents of exhibit O and Q do not sustain or support the grant of the counter claim of S1,000,000; he referred the court NGIGE V OBI (2006) 18 WRN 33 at 154.