Mr. Larry Umeche V. Citibank Nigeria Limited & Anor (2013)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment)
The present appeal is against the judgment of the High Court of Lagos State, Lagos Judicial Division, which was delivered on June 8, 2005, in Suit No. LD/875/2003. By the said decision, the lower court, coram the Hon. Justice O. A. Ipaye granted a summary judgment in favour of the 1st & 2nd Respondents, respectively. Dissatisfied with the decision in question, the Appellant filed the notice of appeal thereof in the lower court on June 13, 2005.
BACKGROUND FACTS:
The 1st Respondent is an incorporated and duly licensed banking company, having the registered place of business thereof situate at 1, Idowu Taylor Street, Victoria Island, Lagos. It equally has some branches in other states of the Federation. On the other hand, the Appellant and the 2nd Respondent were the directors of Elfa Limited (the original 1st Defendant in the suit and Appellant in the sister appeal No. CA/L/97/06).
The case of 1st Respondent (Plaintiff) was that the said Elfa Limited applied for a sum of N98,750,000.00 (US$1,000,000) by way of Discounting Banker Acceptance Import Credit Facilities for a maximum of 120 days. The import finance facility was guaranteed by the Appellant and 2nd Respondent. The loan was to enable the said Elfa Ltd to open a letter of credit (L/C) for the importation of some non-perishable merchandise.
However, dispite repeated demands, Elfa Limited failed to liquidate the outstanding finance facility granted thereto by the 1st Respondent. Consequent whereupon, the 1st Respondent instituted the suit in question at the lower court against Elfa Ltd, the Appellant and 2nd Respondent, jointly and severally. By paragraph 22 of the Statement of Claim thereof (pages 1 – 4 of the Record), the 1st Respondent sought against Elfa Ltd, the Appellant and 2nd Respondent, the following reliefs:
- WHEREOF the Claimant claim against the Defendants jointly and severally or in the alternative the sum of N49,050,163.67 being the over draft and import finance facilities granted by the Claimant to the Defendants and which repayment the Defendants have failed neglected and omitted to make despite repeated demand.
The Claimant also claim interest on the said N49,050,163.37 at the rate of 22.6% from 1st day of February, 2003 until judgment and thereafter until the judgment debt is fully and finally liquidated.
The Plaintiff also claim the cost of the suit from the Defendants.
Not unexpectedly, the Appellant filed a defence to the claim against him to the effect, inter alia, thus:
- In the foregoing circumstances, the 2nd Defendant contends that without prejudice and in addition to his other defences, the Plaintiff is estopped from bringing and prosecuting the suit against him.
WHEREFORE the suit is deserving of dismissal with substantial costs being speculative, baseless and an abuse of process.
He equally incorporated a counter claim in the statement of defence thereof, thereby seeking the following reliefs:
- WHEREOF the 2nd Defendant counter claims against the 3rd Defendant as follows-
(a) The said sum of N4,000,000.00 (Four Million Naira) which sum the 3rd Defendant has failed refused and / or neglected to pay to 2nd Defendant/Counter-Claimant despite repeated demands.
(b) Cost of this action as may be assessed.
On 02/12/04, the 1st Respondent filed an application for a summary (final) judgment regarding the claim in question on his part, the Appellant filed a preliminary objection to the application in summary judgment. Both the application for summary judgment and the preliminary objection thereto were heard together by the lower court, and reserved for delivery of ruling thereon.
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