First Bank Nigeria Plc V. Faiko Nig. Limited (2007)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA (J.C.A)

This is an appeal against part of the judgment of J. O. Falodun. J of the High Court of Justice Akure Ondo State delivered on the 31st May 1999 in Suit No. AK/11/94 FAIKO NIG. LTD V. FIRST BANK OF NIG PLC in which the learned trial Judge in dismissing the Respondent’s claim also dismissed the Appellant’s counter claim with these words “The defendant also counter claimed for N2,298,705.08. The rule is that the particulars of a counter claim must be pleaded and that evidence must be adduced to support the facts pleaded. In this case there is no evidence in support of the amount claimed. The defendant’s counter claim fails.” It is this part of the judgment dismissing the Appellant’s counterclaim that this appeal is all about.

The facts of this case are that the Respondent as plaintiff had commenced this suit by a writ of summons dated the 11th March 1994 seeking the following reliefs which are also contained in its statement of claim also dated the 11th March 1994. The writ of summons is for –

1. A declaration that the defendant is only entitled to charged on any loan, overdraft or banking facility granted to the plaintiff banking interest prevailing as at the time the plaintiff was granted the said loan, overdraft and or banking facility.
2. A declaration that the defendant cannot unilaterally and or arbitrarily increase the interest rate payable on the loan, overdraft or banking facility granted to the plaintiff without the knowledge and consent of the plaintiff.
3. A declaration that the plaintiff cannot be owing the defendant a staggering sum of N1.5 Million (One million, five hundred thousand Naira only) or anything in the neighbourhood of that amount having paid about N710,000.00K (Seven Hundred and Ten thousand Naira only) to the defendant.
4. An order of injunction restraining the defendant, its agents privies, nominees whatsoever from selling, alienating or advertising for sale or doing anything inconsistent with the plaintiffs title in respect of the landed property situate, lying and being at Block A, Faleso Family Industrial Layout, Ondo Road, Akure held under a Lease Agreement dated 15th March, 1983 and Registered as No. 10 at page 10 in Volume 219 at the Lands Registry in the Office at Akure.
5. An order of injunction restraining to the defendant, its agents, privies, nominees whatsoever from selling alienating of advertising for sale or doing anything inconsistent with the plaintiffs title in respect of all the assets in a deed of debenture created in favour of the defendant on the 7th of July, 1986 and registered with the Registrar of Companies on the 10th of July, 1986.
6. The sum of N15 Million as damages resulting from the management of the plaintiffs account by the defendant.

The defendant (now Appellant) in response to the Statement of Claim filed a fourteen paragraph statement of defence and claim dated 4th July 1994 and filed on the 5th September 1994 in which it counter claimed in paragraphs 13 and 14 against the Respondent as follows: –

COUNTER CLAIM

13. The defendant counter claims the total sum of Two Million, two hundred and ninety eight thousand, seven hundred and five naira eight kobo as at date.
14. The defendant also claims the current bank’s rate of interest on the said sum in paragraph 13 above from 30th June 1994 and until the case is disposed of and thereafter 20% interest until liquidation of the entire debt.

In answer to the Appellant’s counterclaim the Respondent filed a Reply and Defence to counterclaim dated the 30th September 1994 and filed on the 3rd October 1994 wherein the Respondent stated as follows:-

This plaintiff joins’ issues with the defendant in its defence and counterclaim save in so far as same consists of admissions:-

1. The Plaintiff repeats all the averments contained in the statement of claim.
2. The Plaintiff does not owe the defendant the sum of N2,298,750.80K (Two Million, two hundred and ninety eight thousand seven hundred and fifty naira eight kobo) only as counter claimed or at all.

Whereof the Plaintiff avers that the defendant is not entitled to any of the reliefs claimed and state that the claims are frivolous, vexations and an abuse of court process and should be dismissed with substantial cost to the plaintiff.

At the close of pleadings trial commenced on the 2151 October 1997. The Respondent as Plaintiff called two witnesses while the Appellant called one witness who testified as DW1. After addresses of counsel on both sides, the learned trial Judge in a reserved judgment an the 31st May 1999 dismissed the Plaintiffs claim as well as the defendant’s counterclaim.

Aggrieved by the decision of the learned trial Judge in dismissing the counterclaim, the defendant filed a Notice of Appeal dated 11th December 2001 which is to be found an pages 93 and 94 of the Record of Appeal and is reproduced hereunder-

NOTICE OF APPEAL

TAKE NOTICE that the Defendant/Appellant being dissatisfied with the Decision of the Honourable Justice J.O. Falodun of the High Court Akure, Ondo State delivered on the 31st day of May, 1999 (more particularly described in paragraph 2 below) both hereby appeal to the Court of Appeal upon the grounds stated in paragraph 3 below and will at the hearing of this appeal seek the relief set out in paragraph 4 below.

AND the Appellant further states that the Names and Addresses of those directly affected by the Appeal are as stated in paragraph 5 below.

2. PART OF THE DECISION COMPLAINED OF: The Decision dismissing the appellants counter claim.
3. GROUNDS OF APPEAL:
4. The learned trial Judge erred in law in dismissing the defendant’s counter claim simply because no evidence was led in support of the claim.

PARTICULARS: