Elfa Limited V. Citibank Nigeria & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment)

The instant appeal was filed against the judgment of the High Court of Lagos State, Lagos Judicial Division, delivered on June 8, 2005 in suit No. LD/875/03. By that decision, the lower court, coram O. A. Ipaye, J; granted a summary judgment in favour of the 1st Respondent. Dissatisfied with the said decision, the Appellant filed the notice of appeal thereof in the court below on June 13, 2005.

BACKGROUND FACTS:

The 1st Respondent is an incorporated and duly licensed banking company with the principal place of business thereof situate at 1, Idowu Taylor Street, Victoria Island, Lagos. It equally has branches in other States of the Federation. The Appellant, on the other hand, is an incorporated limited liability company. It has the place of business thereof situate at 73B, mainland way, Dolphin Estate, Ikoyi, and Central administrative office at Norah House, 69 Badagry Express Way, Lagos. The 2nd Respondent is one of the Directors of the Appellant.

The Appellant applied for, and was duly granted, the sum of N98,750,000.00 (equivalent of US$1,000,000) as a discounting banker acceptance import credit facility, for a maximum period of 120 days. That import finance facility was guaranteed by the 2nd Respondent and one Mr. Lawrence Umeche (the Appellant in the sister appeal No. CA/L/452/05). The loan was purposely to enable the Appellant to open a letter of credit (L/C) for the importation of some non-perishable merchandise.

The case of the 1st Respondent at the lower court was that, despite repeated demands, the Appellant defaulted in liquidating the outstanding loan. Consequent whereupon, the 1st Respondent filed the said suit (LD/875/03) in the lower court, thereby claiming various reliefs against the Appellant and two other persons. By paragraphs 20 & 21 of the Statement of claim thereof (pages 3 – 5 of the Record), the 1st Respondent sought against the Appellant and two others, the following reliefs:

20. WHEREOF the Plaintiff claim against the Defendants jointly and severally or in the alternative the sum of N49,050,163.67 being the overdraft and import Finance Facilities granted by the Plaintiff to the Defendants and which repayment the Defendants have failed neglected and omitted to make despite repeated demand.
21. The Plaintiff also claim interest on the said N49,050,163.67 at the rate of 22.6% from 1st day of February, 2003 until judgment and thereafter until the judgment debt is fully and finally liquidated.

The Plaintiff also claim the cost of the suit from the Defendants.

ISSUE NO. 1:

Instructively, the Main Record of Appeal, deemed to have been properly compiled and transmitted on 29/03/07, spans a total of 95 pages. It was compiled and transmitted by Olayinka Bello Esq, of Dapo Elemide & Associates, of Appellant’s counsel. A supplementary record of appeal was equally compiled and transmitted on 13/11/07 by Nwabufo Osigwe Esq. The supplementary record of appeal spans a total of 30 pages. Pages 1 – 8 thereof relate to motion on notice filed on 05/10/05 by 2nd Defendant. Pages 9 – 27 relate to 3rd Defendant’s preliminary objection and written address. While pages 28 – 30 relate to the Certified True Copy of the ruling of the lower court, delivered on 27/10/05, respectively.

The motion on notice for summary judgment, the affidavit and written address in respect thereof, are contained at pages 41 – 49 of the Main Record. And by the said motion, the 1st Respondent had prayed the lower court for a sole relief:

1. Leave of the Honourable Court entering final judgment with cost in favour of the Claimant/Applicant in the sum of N49,050,963.67K against the Defendant/Respondents at the interest rate of 22.6% from 1st February 2001 until judgment debt is fully and finally liquidated.

An affidavit of 13 paragraphs was filed in support of the application. Attached thereto are 11 exhibits, viz:

(a) Letter of offer dated 6th March, 2000.

(b) Overdraft agreement dated 6th March, 2000.

(c) Negative Pledge dated 6th March, 2000.