Kentus Chemicals And Allied Projects Limited V. United Bank For Africa Plc (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Delta State sitting in Asaba, delivered on the 7th day of December, 2004.

The brief background facts of this matter from the Appellant’s perspective are that, sometime in March, 1997, the Appellant applied for and was granted an Import Finance Facility (IFF), by the Respondent for the purpose of importing secondhand motor spare parts from England. Under the arrangement, the Appellant contributed thirty per centum (30%), while the Respondent contributed seventy per centum (70%) for the importation of the goods. The Appellant directed that the shipping documents should be delivered to it through the Respondent. On the arrival of the goods, the Appellant approached the Respondent requesting for the shipping documents to enable it clear the goods.

However, the Respondent refused to surrender the shipping documents. The Respondent insisted that the Appellant must pay off the Respondent’s seventy per centum (70%) contribution as a condition for the release of the shipping documents. In the process, due to the inability of the Appellant to clear the goods, they went into demurrage. Later the Respondent unilaterally cleared the goods and took them into a warehouse hired for the purpose. In the end, the Respondent charged and debited the account of the Appellant with the sum of eight hundred and eighty seven thousand eight hundred and sixty two naira, thirty kobo (N887,862.31) as the costs of clearing and warehousing the goods. The Appellant took a writ at the trial Court and claimed against the Respondent in its statement of claim at pages 40 to 47 of the record of appeal, as follows:

1. A declaration that the Defendant is not entitled to debit the Plaintiffs Account No. 20100579(2) with the Defendant’s Asaba branch, with the sum of N887,862.13 being amount purportedly spent by the Defendant in clearing, forwarding, demurrage and warehousing of the Plaintiffs goods, without the Plaintiff’s consent or authority first had and obtained.
2. A declaration that the purported debit advice issued by the Defendant in respect of the Plaintiffs said account for the said amount and any purported interest charged thereon is invalid, illegal, null and void and of no effect whatsoever.
3. A declaration that the Defendant’s withholding of the Plaintiffs shipping documents as aforesaid, is wrongful and illegal.
4. The sum of N5,000,000.00 (Five Million Naira) being special and general damages for the Defendant’s wrongful detention of the plaintiffs shipping documents in respect of the said goods, despite repeated demands, as well as an order for delivery up of the documents.
5. An order of injunction restraining the Defendant from further charging interest on the Plaintiffs said account in respect of any purported expenses incurred in clearing the Plaintiffs goods as aforesaid.

The case went to trial. The parties called one witness each and tendered exhibits. At the end of the trial, the learned trial Judge in his judgment, save for the order of the return of the shipping documents to the Appellant, dismissed the claims of the Appellant. The judgment is at pages 125 to 163 of the record of appeal. Dissatisfied with the said judgment, the Appellant filed an appeal against it to this Court. The notice and grounds of appeal containing six grounds of appeal dated 31st of January, 2005 which was filed on the 2nd of February, 2005, is at pages 164 to 167 of the record of appeal.

The learned counsel for the Appellant, G. A. I. Mowah prepared the Appellant’s brief of argument dated 5th June, 2007 and filed on 6th June, 2007. In it, three issues were distilled from the six grounds of appeal for determination. The issues state as follows:

ISSUE 1

Was the learned trial Judge right in deciding in the judgment that the Plaintiffs shipping documents formed part of the security for the facility granted the Plaintiff by the Defendant?

ISSUE 2

Was the learned trial Judge right in deciding that the plaintiff was obliged to pay to the Defendant the cost which the Defendant incurred in clearing the goods?

ISSUE 3

Was the learned trial Judge right in dismissing Plaintiffs claim in detinue in the face of the findings of fact that the Defendant was not justified in detaining the Plaintiffs shipping documents after the Plaintiff had repaid the facility for which the Defendant held the documents?

In the Respondent’s brief of argument dated and filed on 14th August, 2009, the learned counsel for the Respondent, Adesuwa Omonuwa adopted the three issues formulated by the Appellant’s counsel for the determination of the appeal, as already stated above.

I have meticulously considered the submissions of counsel for both parties and the legal authorities relied on by each of them in support of their respective positions. The three issues formulated for determination in this appeal in my view are coterminous and could be considered together in the resolution of the grievances of this appeal.