Mr. Chika C. Mbonu V. Chief Dr. Christopher Ezeala Igbojekwe & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A (Delivering the Leading Judgment)

This Appellant was the 2nd Defendant in the suit of the 1st Respondent in this appeal commenced by way of originating summons of the Federal High Court, Port Harcourt in the Suit No. FHC/CS/PH/277/2008. The cause of action is adumbrated by paragraphs 2, 3, 4, 6 and 7 of the verifying Affidavit. The said averments are herein below reproduced viz:

2. That by a letter dated November 1, 2002 the 1st defendant as promoter and for the 2nd defendant invited me to invest in the now defunct ASSURANCE BANK NIGERIA LIMITED. A copy of the said letter is hereto exhibited and marked Exhibit “A”.
3. That sequel to the said invitation which I accepted I entered into a BOARD MEMBERSHIP AGREEMENT dated 14th November, 2002 with the 1st defendant in which I was referred to as the INVESTOR and the 1st defendant was referred to as the PROMOTER. A copy of the said BOARD membership agreement is hereto exhibited and marked Exhibit “B”.
4. That the said BOARD MEMBERSHIP AGREEMENT (Exhibit B) was entered into in my office at plot 86 East/West Road, Rumuodara, Port Harcourt within the jurisdiction of this Honourable Court.
5. That in keeping with, my own obligation under the said BOARD MEMBERSHIP AGREEMENT (Exhibit B herein) I duty paid the sum of US$ 500,000 (five hundred thousand United States of America dollars) vide CITIBANK cheque Number 35864 of 11/11/2002 in certified bank draft in favour of Parmex Gensec Consortium (the 2nd defendant). The receipt of the said cheque was duly acknowledged by the 1st defendant as stated in clause 4 of the said BOARD MEMBERSHIP AGREEMENT. A copy of the CITIBANK cheque is hereto exhibited and marked Exhibit “C”
6. That since I paid the sum of US$500,000 (five hundred thousand United States of America dollars) as far back as 11/11/2002 and up till date, I have not been appointed as a BOARD member of the 2nd defendant bank and the money I paid has not been refunded to me.

The 1st Respondent, as the plaintiff, took the action against two defendants, namely the Appellant (1st Defendant) and the 2nd Respondent, as the 2nd Defendant. His claims are-

1. The sum of US$500,000.00 (Five Hundred Thousand United States of America dollars) being refund of the money paid by the plaintiff to the defendants since 11/11/2002 for the purposes of

a. Purchase of Shares of ASSURANCE BANK OF NIGERIA LIMITED and

b. the appointment of the plaintiff as a Board Member (that is to say, a Director) of ASSURANCE BANK OF NIGERIA LIMITED as per the Board MEMBERSHIP Agreement dated 14th November, 2002 which purchases have not been fulfilled.

2. Interest at the rate of 35% per annum on the sum of US $500,000.00 (Five Hundred Thousand united States of America dollars) with effect from 1/6/2004 till the date of judgment and thereafter of the rate of 10% per annum till full payment of the judgment sum.

The writ on the Undefended Summons was issued on 10th November, 2008.

The Appellant, as 1st Defendant, upon filing his Notice of Intention to Defend the Suit together with an affidavit disclosing his defence to the suit on the merits; raised a preliminary objection to the effect that the Federal High Court by dint of section 251 of the Constitution 1999, had no jurisdiction to entertain the suit. The Notice of Preliminary objection, supported by on affidavit, is at pages 112 – 115 of the Record.

The Federal High Court heard the Preliminary Objection and dismissed it on 1st December, 2008. The Appellant, as the 1st Defendant, filed Notice of Appeal against this ruling dismissing the preliminary objection on 10th December, 2008.

The Appellant’s application for an order staying further proceedings in the suit pending the determination of his appeal was dismissed on 30th July, 2009. The Lower court thereafter proceeded in the trial, and on the same 30th July, 2009 it entered judgment against the Appellant and the 2nd Respondent. The Appellant filed another Notice of Appeal on 31st July, 2009 against the decision against him. The Record and the briefs of argument exchanged by the parties are in respect of this Notice of Appeal filed on 31st July, 2009.

The Appellant and 1st Respondent filed and exchanged briefs of argument in this appeal. The 2nd Respondent did not file any brief of argument.

The appeal was heard on 15 January, 2013. Mr. C.V.C. Ihekweazu of counsel for the Appellant adopted the Appellant’s Brief filed on 2nd November, 2009, and the Appellant’s Reply Brief containing the Appellant’s response to the preliminary objection raised and argued in the 1st Respondent’s Brief filed on 3rd August, 2012. Counsel prayed that the appeal be allowed on the arguments canvassed in those briefs on all the issues therein. For the 1st Respondent, B.E.I. Nwofor, SAN, had urged that the preliminary objection raised and argued in the 1st Respondent’s Brief filed on 3rd August, 2012 be upheld. The preliminary objection was argued of pages 1 – 9 of 1st Respondent’s Brief. In the event the Preliminary Objection was not upheld the Senior Counsel urged us to dismiss the appeal, on merits, on all the arguments on the two issues formulated for the determination of the appeal by the 1st Respondent.

The three (3) issues formulated and argued by the Appellant are as follows:-

2.01 Whether on the documentary Affidavit evidence Presented before the Lower Court by the Appellant and Respondents, the Lower Court was right when it entered judgment in favour of the 1st Respondent, having regard to the position of the Law and the overriding interest of justice.

GROUND 1