Hani Akar Enterprises Ltd V. Indo Nigeria Merchant Bank Ltd (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against part of the judgment of the High Court of Kano State presided over by Hon. Justice S. B. Adamu delivered on the 4th of May, 2004 in suit No. K/111/2002. There is also a cross – appeal. A synopsis of the facts of this case will suffice.

The Appellant as plaintiff before the lower court is a Limited Liability Company and a customer of the Respondent which enjoyed some banking facilities from the Respondent. The said banking facilities were secured by various collateral securities. When the Appellant was in need of more money to shore up its capital base, it approached the Kano Branch Manager of the Respondent through its Managing Director and requested for an enhancement of the existing facilities. The Appellant was requested to submit original title documents of its property apart from those earlier on submitted for the existing facilities as collateral security for the intended enhancement facilities.

The Appellant’s Managing Director submitted to the said Branch Manager Original Certificate of Occupancy No. LKN/RES/RC/82/1857 and Original of Deed of Assignment between Ekele Services Ltd and the Appellant registered as No 195 page 195, vol. 20 (Assignment) at Land Registry, Kano. Their photocopies are Exhibits 1 and 2 respectively. The Respondent however says the two documents were additional securities for loans already granted. The Respondent could not advance more money to the Appellant after collecting exhibits 1 and 2 and the documents were not returned. When all personal efforts towards recovering the documents proved abortive, a suit was filed against the respondent for the recovering of the documents. The Appellant’s writ of summons and statement of claim are contained on pages 40-46 of the record of proceedings.

Upon being served with the court processes, the Respondent, who was then the 2nd Defendant at the trial court, filed a statement of Defence with a counter-claim which is contained at pages 51-54 of the record. At the trial, the Managing Director of the Appellant testified as Pw1 and the Respondent called two witnesses as Dw1 & Dw2. After taking evidence from both parties, the learned trial judge dismissed the counter claim of the Respondent/Cross-Appellant and entered judgment for the Appellant on the following terms:-

“1. That the defendant has no legal right or equitable right to detain and continue to detain the Plaintiffs Certificate of Occupancy No. LKN/RES/RC/82/1857 (Exhibit 1) and Deed of Assignment between EKELE SERVICES LIMITED AND HANI AKAR ENTERPRISES LIMITED registered as No. 195 at page 20 (Assignment) at the Land Registry Office Kano (Exhibit 2) without any consideration for doing so.

2. That the action of the 1st defendant in deceiving the Plaintiff Managing Director to deliver the said certificate of occupancy No. LKN/RES/RC/82/1857 and the Deed of Assignment to him with a promise to secure additional loan from the Indo Nigeria Merchant Bank Ltd without granting the loan is fraudulent.
3. That the defendants, their agents, privies, representatives and/or assigns are perpetually restrained from demanding from the Plaintiff its Managing Director or agent and/or employees the Certificate of Occupancy No. LKN/RES/RC/82/1857 and the Deed of Assignment.
4. That in order to promote cordial relationship and understanding between the Plaintiff customer and defendant bank, no damages are to be paid by either side.

5(a) That in view of the death of Mr. Hani Akar himself the certificate of occupancy No. LKN/RES/RC/82/1857 and Deed of Assignment between EKELE SERVICES LIMITED and HANI AKAR ENTERPRISES LIMITED registered as No. 195 at page 195 vol. 20 (Assignment) at the Land Registry, Kano must be released on the undertaking that the property will not be sold or – alienated pending the hearing and determination of the suit between the same parties before court 1 High Court, Kano.

(b). That the Certificate of Occupancy shall be released to either the Director of Litigation, Miller Road, High Court Complex, Kano State, or

(c). The Chief Registrar, High Court, Kano State or

(d). The Certificate of Occupancy, Deed (sic) any of these persons acting as sureties and giving (sic) determination of the suit before High Court NO. 1 on the issues of the loan between the parties.

They are:-

(i). The Managing Director of African iles, Kano

(ii). The Managing Director, Angel spinning ile, Kano.

(iii). The Head of Lebanese Community, Kano