Ndaba Nigeria Limited & Anor V. Union Bank of Nigeria Plc & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

By a Writ of Summons dated 20th April, 2004 the Plaintiffs now (Appellants) claimed against Defendants/Respondents jointly and severally as follows:-

“(i) The sum of N57,320,000.00 (Fifty Seven Million, Three Hundred and Twenty Naira) only being the cost of all the machines carried away by the Defendants plus;

“(ii) Cost of repair to the door and wall damaged by the Defendants estimated to cost N65,000.00;

“(iii) The sum of N5 Million Naira as damages for loss of production, suffering and inconveniences since 23rd January, 2004;

“(iv) The total claim from the Defendants jointly and severally is N62,385,000.00 being the cost of various items removed illegally from the factory site at Km 8 Yakuba Village, Ilorin – Jebba Road on 23rd January, 2004 by the Defendants, cost of repair to the door and walls damaged and general damages as a result of the action of the Defendants.”

The Plaintiffs/Appellants had in the same Court earlier initiated Suit No.FCH/IL/CS/16/2003 by way of Originating Summons against the 1st Defendant and four others wherein they sought for the interpretation and determination of whether letters dated 26/1/01 and 29/7/01 from the 1st Defendant asking for en bloc payment of sum of N15,012,776.35 (Fifteen Million and Twelve Thousand, Seven Hundred and Seventy-Six Naira and Thirty-Five Kobo), being a loan advanced to the Plaintiffs/Appellants by the 1st Defendant, was not ultra vires the Bank.

The Plaintiffs also sought for the following declaratory and injunctive orders inter alia:

i. That the said letters seeking the payment of the said loan was ultra vires the bank;

ii. An order compelling the Defendants to grant the Plaintiffs the working capital of N6million with immediate effect to enable the agreement executed by both parties.

iii. An order of perpetual injunction restraining the Defendants whether by themselves their agents, privies and or servants from further acting or implementing the content of the said letter in any manner whatsoever and howsoever.

Despite the above pending suit, the 15th Defendant/Respondent allegedly caused the 2nd-6th Defendants/Respondents to remove the entire Plaintiffs’ machines as enumerated in the statement of claim, hence the filing of the suit which is the subject of this appeal. Pleadings were duly exchanged between the Plaintiffs/Appellants and the 1st and 3rd Defendants between the 14th of April, 2004 and 9th of November, 2004. On 2nd June, 2006, the 2nd Defendants filed an application dated the same day for extension of time within which to file a joint Statement of Defence on behalf of the 1st – 4th Respondents which application was not moved until the suit was struck out.

However, on the 15th day of June, 2006, the 1st and 3rd Defendants filed a Notice of Preliminary Objection dated the same day challenging the jurisdiction of the trial court (the Federal High Court) to entertain the Plaintiffs’ case.

On the 14th day of June, 2006, following submission of the Learned Counsel for the 1st and 3rd Defendants/Respondents that the Plaintiffs’ suit disclosed no cause of action against the 1st and 3rd Defendants and his (Learned Counsel’s) argument that the 1st Defendant could carry out foreclosure against the Plaintiffs without resort to court action; and secondly, that his application for striking out was on the ground that the Plaintiffs’ suit was an action in conversion over which only the State High Court had jurisdiction to entertain; the court below granted the prayers and declined jurisdiction.