Enterprise Bank Nigeria PLC & Ors V. Cinderella Bakery And Agric Foods Industries Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

There was a banker-customer relationship between the 1st Appellant and the Respondent. The Respondent maintained a current account No.0101004709 with the 1st Appellant. In June 1986, the 1st Appellant granted Credit facility to the Respondent to the tune of N50,000.00 which was secured by the Respondent charging its floating assets by way of a floating Debenture to the 1st Appellant.

The floating Debenture created the rights and obligations of the parties in respect of the facilities granted to the Respondent by the 1st Appellant. The assets charged and/or mortgaged were insured. In or about April, 1996, the Respondent discovered that its account was wrongly debited up to the tune of N42,677.60 which were all averred at paragraph 16 of the Amended Statement of Claim.

The 1st Appellant was notified of all the wrong debits. It was alleged that instead of the 1st Appellant either servicing all wrong interest debits or re-crediting the Plaintiff’s account and paying the insurance claims of the Respondents, the 1st Appellant wrote and demanded the plaintiff to settle its overdrawn account which purportedly stood at N154,432.

The 1st Appellant followed it up with several acts of embarrassment and intimidation. To prevent further deterioration of the situation, the Respondent’s Managing Director, Mr. Adnan Akar issued a Savannah Bank Cheque No.2101002242 for the said sum of N154,432.22 in settlement of the Respondent’s indebtedness. The 1st Appellant, without proper reconciliation of plaintiff’s account, demanded for further settlement of the sum of N35,297.52 as contained in its letter dated 3/6/96.

It was stated that due to the wrongful debiting of the Respondent’s account to the tune of N42,677.60, and the insurance claim which has been approved but not yet paid, the exact sum of the Respondent’s indebtedness to the 1st Appellant was unascertainable at the time the 1st Appellant demanded for payment of the sum N154,432.22, and, the subsequent trespass of the Appellants to the Respondent’s premises and properties.

It was stated that there was no justification for the unlawful entry into the Respondents premises situate at No. C7 Beirut Road, Kano and the seizure and carting away of the Respondent’s assets, stock in trade, properties, e.t.c., on 30/5/96. It was stated that the wrongful and unlawful acts subjected the Respondent, who runs a restaurant and a supermarket in its business, to great embarrassment, irreparable damage to its goodwill. It lost considerable number of customers as a result.

It was further averred that the Respondent was never served with any Notice of Public Auction of its properties nor did it permit the Appellants in writing to enter its premise. The acts were carried out maliciously and out of spite towards the Plaintiff and with the intention of humiliating the Respondent and injuring its reputation and goodwill. It was as a result of these averments that the Respondent claimed against the Appellants as follows:

“1. The sum of N5,000,000.00 damages for trespass to the Plaintiff premises and properties.

2. The sum of N5,000,000.00 as damages for the unlawful, deliberate and malicious impounding of the goods and properties of the Plaintiff at the Plaintiff’s premises at Beirut Road, Kano by use of force and intimidation by armed policemen and uncountable number of labourers thus subjecting the Plaintiff to ridicule and embarrassment in the eyes of the public and/or its customers.
3. An order compelling the 1st Defendants to settle the sum of N42,677.60 being the amount wrongly debited from the Plaintiffs account by the 1st Defendants which the Central Bank of Nigeria confirmed were unauthorized charges and for which the 1st Defendants have refused to comply.
4. An order compelling the 1st Defendants to pay into the Plaintiffs account the sums of money settled by the Insurance Company which the 1st Defendants informed the Plaintiff that same had been settled in respect of the burglary claim under Burglary Insurance Scheme Policy No.F002/06/0492/NE/LA.
5. A declaration that the Plaintiffs is not owing the sum of N35,297.52 claimed by the 1st Defendants as the auctioneers’ fees i.e. the 4th Defendant or any sum at all.”

Evidence was called by the parties and in delivering its judgment, the lower Court entered judgment in favour of the Respondent in the following terms:

“1. The defendants shall pay the Plaintiff the sum of N200,000.00k (Two Hundred thousand naira) as damages for forceful entry into the Plaintiffs premises.

2. The defendants shall pay the Plaintiff as damages the sum of N300,000.00k (Three hundred thousand naira) for the unlawful deliberate and malicious upending of the Plaintiff goods and properties subjecting the Plaintiff to ridicule and embarrassment in the eyes of the public and its customers.
3. The defendants shall pay the Plaintiff the sum of N42,677.60k being the unauthorized management and service charges debited on the Plaintiff statements of account by the 1st defendants.
4. The defendants are not entitled to the sum of N35,297.52k against the Plaintiff as auctioneers fee.”

An appeal was lodged against the said decision by a Notice of Appeal dated 19/12/2003. Although the judgment itself seemed to have been delivered on 15/12/03, the Notice of Appeal gave the impression that the judgment was delivered on 18/12/03. The parties filed their respective Briefs and, in the Amended Appellant’s Brief of Argument prepared and adopted before this Court by Kayode Olatunji Esq; three issues were raised. They are:

“(1) Whether or not the lower Court was not in error in entering judgment against the 2nd – 4th Defendants who were servants and agents of a Disclosed Principal, the 1st Defendant.

(2) Whether or not the Lower Court was not in error in awarding two heads of Damages one for “unlawful deliberate and malicious impounding of Plaintiffs goods and Trespass or damages at all against the Appellants in the circumstances of this case and when same was not established and Appellants not liable to same.