Nigerian Bank For Commerce And Industry V. Alfijir (Mining) Nig. Ltd. (1999)
LAWGLOBAL HUB Lead Judgment Report
A. KALGO, JSC
This is an appeal against the decision of the Court of Appeal, Jos Division, delivered on 23rd day of March, 1993. The respondents herein were the plaintiffs and the appellants were the defendants in the High Court of Justice, Jos.
The respondents, in their writ of summons and the further amended statement of claim, claimed against the appellants, the following reliefs:-
(a) An order nullifying the purported appointment of the 2nd defendant as the Receiver/Manager of the plaintiff; AND in addition or alternatively,
(b) An order declaring that the receipt and retention of the sum of N1.3m belonging to the plaintiff by the 1st defendant is wrongful.
(c) N2, 275,000.00 as special damages
(d) N125, 000.00 as general damages;
(e) Cost of this action’
Pleadings were then ordered, filed and exchanged between the parties. Thereafter the case proceeded to trial at the end of which the case was adjourned for judgment. In a fairly lengthy considered judgment, the learned Chief Judge of Plateau State, Uloko C.J. delivered on 23rd of March, 1993, entered judgment in favour of the plaintiff/respondent in the following terms:-
‘1. The appointment of the 2nd defendant as Receiver/Manager of the plaintiff is hereby nullified;
The receipt and retention by the 1st defendant of the sum of N1.3m belonging to the plaintiff is hereby declared to be wrongful;
The defendant shall pay the sum of N2, 275.000.00 to the plaintiff as special damages;
Costs of N5, 521,000.00 against the defendants in favour of the plaintiff”
Dissatisfied with the judgment of the trial court, the appellants appealed to the Court of Appeal in Jos, which heard the appeal and dismissed it with N800.00 costs in favour of the respondent. The appellants have now appealed to this court.
In this court, the parties filed and exchanged briefs of argument. The appellant in his brief formulated 4 issues for determination of the court in the appeal. They are:-
‘(1) whether having regard to
(a) The plaintiff’s claims in the writ of summons and the further amended statement of claim,
(b) The grounds on which the trial court based his judgment, and
(c) the issues in contest in the appeal; the court below was right in holding, as it did, that the consideration of the nullity or otherwise of the appointment of the 2nd appellant by the 1st appellant as the Receiver/Manager of the respondent company was an academic exercise which would serve no useful purpose in the determination of the appeal and thereby declined to deal with the same.
(2) Whether having presumed and/or conceded, as the court below did, that the appointment of the 2nd appellant by the 1st appellant as Receiver/Manager of the respondent was valid, it was still open to the court below to hold, as it did, that the receipt and retention by the 1st defendant mortgagee of the cheque for N1.3m payable to respondent company in receivership was wrongful and that the defendants were liable in damages.
(3) Assuming, without at all conceding, that the 1st appellant wrongly received the said cheque for N1.3m and held the same for five (5) months whether the anticipatory and prospective loss of profits awarded in full by the trial court and affirmed by the court below, was proved according to law.
(4) Whether the award by the trial court of the sum of N5,521.00 as costs against the appellants was based on right principles.
The respondent also set out 4 issues for determination in the brief as follows:-
‘1. Was the Court of Appeal right in holding as it did that the consideration of the validity or otherwise of the appointment of the 2nd appellant by the 1st appellant as the Receiver/Manager of the respondent company would serve useful purpose in the determination of the appeal.
If the answer to issue No. 1 above is in the negative, has the failure of the Court of Appeal to consider that occasioned any miscarriage of Justice to warrant setting aside its judgment?
Has the appellant shown any exceptional circumstances why this Honourable Court should disturb the concurrent findings of facts of the two lower courts.
Was the Court of Appeal right in affirming the judgment of the lower court in its entirety’.
The appellants filed 8 grounds of appeal against the decision of the Court of Appeal and formulated only 4 issues for determination. I have carefully examined the grounds of appeal and I am satisfied that the issues are very much related to the said grounds. I also prefer the issues formulatedby the appellants to those of the respondent for the determination of this appeal. Before going into the consideration of issues I think it is appropriate for the clear understanding of the issues involved to set out, albeit briefly, the facts giving rise to this appeal.
The respondent a limited liability company engaged in stone crushing business at Km 2 Nassarawa Road, Keffi in Plateau State of Nigeria, sought and obtained loan facilities from the 1st appellant in 1982 for the purchase of a stone crushing machine. In March, 1982, the 1st appellant approved a loan of N1, 100,000.00 but actually granted the respondent the sum of N1.036 million for the purchase of the stone crushing machine from the United African Company Limited (U.A.C.) Jos. The 1st appellant paid the money directly to the U.A.C. which then supplied the machine to the respondent.
The said loan was secured by an Investment and Mortgage Agreement dated 21/3/85 admitted in evidence as Exhibit 14. By Exhibit 14, clause 8(1) the loan was repayable in ten consecutive and equal half-yearly instalments of N110,000.00 each after a two year moratorium with the 1st instalment due and payable on 31st July, 1984. On the 16th of February, 1984 the respondent paid the sum of N15, 000.00 on the interest and not on the principal sum.
In 1984, the respondent hired out the stone crushing machine to another company called Guffanti (Nig.) Ltd., with the knowledge of the 1st appellant. Under the hire agreement Guffanti was to use the machine for 15 months and pay to the respondent the sum of N975, 000.00. At the end of the period, Guffanti refused to pay the said sum and substantially damaged the crushing machine. The respondent sued Guffanti in the Jos High Court on the hire agreement and got judgment in the sum of N2.3 million against Guffanti. The 1st appellant was kept aware of the development in the case up till judgment by the respondent. Guffanti appealed to the Court of Appeal against the said judgment and procured a conditional stay of execution of the judgment to the effect that they should pay N1.3 million of the judgment debt to the respondent by 4th February 1988.
By February, 1988, not a single instalment or part thereof was paid by the respondent to the 1st appellant on the principle pursuant to Exhibit 14, even though they were then in arrears of 8 instalments of N110, 000.00 each. And by clause 31 of Exhibit 14 the whole loan became immediately re-payable once there is default of payment of an instalment by 28 days. And by clause 32 thereof, the 1st appellant was clothed with the power to appoint a receiver/manager to manage the business of the respondent including making payments to the creditors pursuant to Exhibit 14.
Therefore, as the loan granted to the respondent became due and payable, the 1st appellant exercised its powers under Exhibit 14 and appointed the 2nd appellant as receiver/manager of the respondent. The 2nd appellant, as receiver/manager collected the cheque of N1.3m (which the Court of Appeal ordered to be given to the respondent as a condition for stay) on 4th of February, 1988 and handed it over to the 1st appellant who acknowledged the receipt by issuing a receipt to Guffanti. The respondent was naturally unhappy with this situation. It demanded the return of the cheque to them through its counsel but the 1st appellant refused. The respondent applied to the Court of Appeal to discharge the conditional stay which that court granted. Guffanti then appealed to the Supreme Court and applied for therestoration of the conditional stay earlier granted to it by the Court of Appeal. The Supreme Court granted the application, restored the conditional stay but ordered that Guffanti must pay the N1.3 million over to the respondent within 7 days. The 1st appellant returned the cheque it received to Guffanti who then paid it over to the respondent on 15/7/88 within the time stipulated by the order of the Supreme Court.
It is very clear that from the 4/2/88 when Guffanti should have paid the said cheque for N1.3 million to the respondent as ordered by the Court of Appeal, to the 15/7/88 when the Supreme Court ordered to pay back the cheque was complied with, a period of over five months had elapsed. The respondent alleged that during this period, they had suffered heavy financial losses due to the action of the 1st appellant in depriving them of the use of the N1.3 million due to them from Guffanti. That is why they sued the appellants in the High Court claiming special and general damages for the losses they said they suffered and the trial court granted all their claims.
At the hearing of this appeal in this court only the learned counsel for the appellants appeared. He adopted and relied upon his brief and urged the court to allow the appeal. In his oral arguments, he submitted that the real issue in controversy between the parties was whether or not the 2nd appellant was duly appointed as receiver/manager of the respondent, and whether or not it was necessary for the Court of Appeal to deal with that issue, not being an academic exercise. Learned counsel referred the court to the investment and management agreement Exhibit 14 clause
32(7) and submitted that it was well within the powers of the 2nd appellant as receiver/manager to collect and pay the N1.3 million cheque to the 1st appellant. On damages, he submitted that the respondent had not proved any special damages suffered by them and are not entitled to any. As for general damages he said that they should be reconsidered and adjusted appropriately
Neither the respondent nor their counsel was present in Court at the hearing, and in accordance with the rules of this court, their brief was deemed argued for the purpose of this appeal.
I shall now consider the issues framed by the appellants. Let me start with issue No. 1. That issue was whether having regard to the whole case, the Court of Appeal was right to refuse to consider the validity or otherwise of the appointment of the 2nd appellant by the 1st appellant as receiver/manager of the respondent regarding it as academic exercise which would serve no useful purpose in the determination of the appeal.
From the evidence adduced in the trial court there is no dispute that the respondent sought for and obtained a loan N1, 100,000.00 to buy stone crushing machine. There was also no dispute that the loan was secured by an Investment and Management Agreement admitted in evidence as Exhibit 14. Both parties executed Exhibit 14 and are therefore bound by its contents absolutely. Clause 8(1) of Exhibit 14 provides inter alia that:-
‘Subject to the terms and conditions in this Agreement the Borrower shall repay to the lender the loan in Nigerian Currency in 10 (ten) consecutive equal half-yearly instalments, the first instalment being payable 2 years after the loan or part thereof as the case may be is paid by the Lender to the Borrower, that is to say on the 31st day of July, 1984 and thereafter on the due dates until the loan has been repaid in full’.
By this clause, after two years moratorium, the respondent was to commence the repayment of N110, 000.00 on the 31st of July, 1984 to be followed consecutively every six months thereafter by 9 equal instalments. It is also not in dispute that up till the filing of this action in the trial court, in 1993, the respondent had not paid any instalment by way of repayment of the loan in compliance with Exhibit 14. The only payment made was for the sum of N15, 000.00 on 26th February, 1988 on the accumulated interest and not on the principal loan.
Clause 31 of Exhibit 14 provides as follows:-
‘The loan and other moneys herein before covenanted to be paid whether by way of interest or otherwise shall become immediately due and payable on any of the following events:-
(a) If the borrower makes default for a period of 28 (twenty-eight) days in payment of any instalment or interest of the loan which may have become due under this agreement.
(b) If any extra-ordinary situation shall have arisen the continuance of which in the opinion of the lender shall make it improbable that the Borrower will be able to perform its obligations under the agreement.
(c) If an order be made or an effective resolution is passed for the winding up of the Borrower.
(d) If an execution or distress be levied or enforced upon or against any of the chattels or properties of the Borrower.
(e) If the Borrower shall stop payment or shall cease or threaten not to carry on the project.
(f) If any incumbrancer takes possession of or a Receiver be appointed for the undertaking, property or assets or the Borrower or any part thereof.
(g) If the Borrower shall commit any breach of the provisions contained in or implied in this agreement.
(h) If any report data or material information given by the Borrower to the lender is found to have been knowingly falsely made or if there has been any substantial change in such report, data or material information so as to effect the basis of the sanction of the loan or may affect the successful completion of the project.’
It is abundantly clear from the evidence at the trial that the respondent defaulted in payment of the instalments stipulated in Exhibit 14 long before the appointment or purported appointment of the 2nd appellant as receiver/manager of the respondent. There was also no proof of any extra-ordinary situation which has arisen and which in the opinion of the 1st appellant made it improbable for the respondent to comply with Exhibit 14. Therefore the events in paragraphs (a) and (g) of clause 31 of Exhibit 14 have happened in this case and I am of the view that the whole loan granted to the respondent by the 1st appellant had become due and payable. I am strengthened in this view by the findings of the learned trial Chief Judge when he said on page 155 of the record thus:-
‘From the contents of Exhibits 3, 3A the repayment of the loan secured under Exhibit 14 have become due’
It is pertinent to observe that throughout the trial there was no evidence to show that any payment was made by the respondent pursuant to Exhibit 14 except the payment of N15, 000.00 on 26/2/88 as interest on the loan. There was therefore no need for the 1st appellant to prove or show what amount was then due and payable following default by the respondent, since the whole amount fell due and payable under clause 31 of Exhibit 14.
Clause 32 of Exhibit 14 also provides for the appointment of a receiver/manager of the respondent by the 1st appellant as Lender. It states:-
‘At anytime after the moneys or liabilities hereby secured become payable, the Lender may by writing under the hand of any Director or Manager or Officer for the time being of the Lender appoint any person or persons to act as a Receiver or Receivers or Receiver/manager of the property or other assets hereby charged or any part thereof and remove any Receiver or Receivers so appointed and appoint another or others in his or their place………’
Clause 32 also set out the duties and responsibilities of the receiver or receiver/manager once appointed which include the power to:-
‘(1) Take possession of, collect and enter the property and for that purpose to take any proceedings in the name of the Borrower or otherwise as may seem expedient.
(2) Carry on, manage or concur in carrying on and managing the business of the Borrower or any part thereof and for any of those purposes to raise or borrow any money that may be required upon the security of the whole or any part of the property.
(4) To make any arrangement or compromise which the Receiver or Receivers or Receiver Manager shall think expedient.
(7) To do all such other acts and things as may be considered by the Lender to be incidental or conducive to any of the matters or powers aforesaid which he or they lawfully may or can do as agent for the Borrower. All moneys received by such Receiver or Receivers or Receiver Manager shall be applied firstly in payment of his or their remuneration and the cost of realisation; secondly in discharging all rents taxes and out going whatsoever in respect of any property including the property for the time being subject to this Legal Mortgage or charge, and thirdly in or towards satisfaction of all moneys hereby secured ………………………..….’ (Italics for emphasis).
Therefore by clause 32 of Exhibit 14 as soon as the money secured by Exhibit 14 become immediately payable as happened in this case, the 1st appellant as Lender becomes empowered to appoint any person or person as receiver or receivers or receiver manager of the respondent as Borrower.
And by the said clause of Exhibit 14 the receiver or receiver manager so appointed has the power to manage the business and affairs of the respondent as agent of the respondent. By paragraph 7 of clause 32, the receiver or receiver manager as the case may be, can apply any money received in the course of his duties as such, towards the satisfaction of all or any part thereof of the moneys secured by Exhibit 14. There is no doubt in my mind therefore that the appointment of the 2nd appellant as receiver manager is very important to the 1st appellant in this case and the consideration of the validity or otherwise of the appointment would have greatly influenced the decision of the Court of Appeal in this matter. It must also be realised that, the main plank of the
respondent’s action was based on the alleged retention of the draft cheque of N1.3m which the 2nd appellant as receiver manager collected from them and handed it over to 1st appellant. If the 2nd appellant was validly appointed and exercised his power in accordance with clause 32(7) of Exhibit 14, then the receipt and retention of the draft cheque of N1.3m could not be wrongful. Therefore I am of the view that the consideration of the validity of otherwise of the appointment of the 2nd appellant as receiver manager is of the great importance in this appeal and it was wrong for the Court of Appeal to refuse to do so referring to it as an academic exercise.
The Court of Appeal per Katsina-Alu JCA, (as he then was) in the leading judgment on page 283 of the record said:-
‘So much energy and time had been dissipated on the legality of the appointment of the 2nd appellant who was plainly not allowed to perform his duties. As I have already indicated, a consideration of the appointment of the 2nd appellant is an academic exercise which does not enhance the fortunes of the 1st appellant in this appeal. In view of this, I do not intend to and will not deal with the submission on whether or not the appointment of the 2nd appellant was null and void. It serves no useful purpose in the determination of this appeal’
As I said earlier, the whole case will turn on whether the appointment of the 2nd appellant as receiver manager was valid or not and that is why in my view ‘so much energy and time had been dissipated on the legality of the appointment.’
It is also my view that the Court of Appeal’s decision on this point was influenced by the findings of the learned trial Chief Judge that the 2nd appellant even though appointed as receiver/manager was not allowed to perform his duties as such receiver/manager. It was not clear from the evidence at the trial or from Exhibit 11A or 11C that the 1st appellant collected the cheque for N1.3 million directly from the respondent. It is true that the 1st appellant admitted receiving the said cheque and even issued a receipt to the respondent for same, but nothing to show that Guffanti gave the cheque to 1st appellant. But the evidence of the 2nd appellant in his cross-examination and re-examination on pages 97 and 104 clearly showed that Guffanti handed over the cheque to the 2nd appellant or he took it away from them after writing Exhibit 11D to them. Therefore I agree with learned counsel for the appellants that it will be very useful to consider the validity or the legality of the appointment of the 2nd appellant as receiver manager in this appeal. I answer issue one in the negative.
The second issue is to me speculative to a large extent. It is formulated on the understanding rightly or wrongly that the Court of Appeal agreed that the appointment of 2nd appellant was valid and legal. No such finding was specifically made by the Court of Appeal in its judgment,. This is so, because it decided that to do so would amount to an academic exercise which was unnecessary. But it is true that the findings of the Court of Appeal in respect of the collection of the cheque for N1.3 million from Guffanti did not appear to challenge the appointment of the receiver manager but laid more emphasis on the fact that the 1st appellant having appointed the 2nd appellant as receiver/manager, collected the cheque itself and did not allow the receiver manager to carry out his duties. The Court of Appeal on page 281 of the record held that:-
‘Clause 32 of Exhibit 14 which governs the relation of the 1st appellant and the respondent vests the right to receive the money only in the Receiver/Manager who has a duty to dispose of it in the manner prescribed by the clause 32(7). The 1st appellant, in the circumstances, was nothing but a busy body. It should have left the Receiver/Manager to carry out his duties. It did not. Rather it chose to collect the cheque from Guffanti itself. It was in grave error. That error occasioned loss to the respondent. The receipt and retention by the appellant of the sum of N1.3m from Guffanti was wrongful’
And proceeded on page 283 to say:-
‘Having appointed the 2nd appellant as Receiver/Manager, the 1st appellant proceeded to perform the duties legally assigned to the receiver/manager. The 1st appellant did not possess such power. It clearly usurped the powers of the Receiver/Manager.’
It would appear therefore that the Court of Appeal assumed that the appointment of the 2nd appellant as receiver manager was alright but that he was not allowed to perform his functions as provided in clause 32 of Exhibit 14 of according to law. It however found that the 1st appellant was in grave error to do what it did and such error occasioned loss to the respondent. It also found the retention of the said cheque by the 1st appellant to be wrongful.
Let me now examine the evidence of record regarding the collection of the cheque of N1.3 million from Guffanti (Nig.) Ltd. The respondent, pleaded in paragraph 15 of their amended Statement of Claim that :-
‘The 1st def. (defendant) acting in concert with Guffanti (Nig.) Limited to vindicate latter’s application for stay of execution and also to deprive the plaintiff of the sum due to it, collected the sum of N1.3 million in draft cheque and 1st def. (defendant) issued its receipt No. 006380 of 4/2/88 to Guffanti (Nigeria) Limited. Plaintiff shall rely on the said receipt at the trial………….’.
In paragraph 3 of their amended Statement of Defence, the appellants denied paragraph 15 of the amended statement of claim and put the respondent to strictest proof thereof. Paragraph 12 and 12A of the Amended Statement of Defence, also state:-
’12.Thereafter and upon being informed of the order of the Court of Appeal Jos ordering GUFFANTI (NIGERIA) LIMITED to pay the plaintiff the sum of N1,300,000.00 (One million three hundred thousand naira only) the 2nd defendant in the exercise of his duties as Receiver/Manager of the plaintiff company wrote to counsel for GUFFANTI (NIGERIA) LIMITED………… informing him of the appointment of a Receiver/Manager and requested that the sum aforesaid be paid to 2nd defendant as Receiver/Manager.
12A Pursuant to the letter aforesaid Guffanti (Nigeria) Limited paid the sum of N1.3m to the 2nd deft as Receiver/Manager of the plaintiff’.
P.W.1 in his evidence in chief said on page of the record:-
‘Guffanti (Nigeria) Limited, prepared a cheque for N1.3 million (sic) the name of the plaintiff the 1st defendant collected the cheque from Guffanti Nigeria Limited. The 1st defendant issued a receipt to Guffanti Nigeria Limited for the amount
On page 69 he added:-
‘The 1st defendant received this money on 4/2/88 and kept it’.
In his cross-examination, the 2nd appellant said on page 104 of the record:-
‘I did not seize any cheque from Guffanti. Guffanti delivered the cheque voluntarily, to me as the Receiver/Manager of the plaintiff company’.
Earlier on page 101 of the record, the 2nd appellant in his cross-examination said:-
‘I am not sure that if I had not seized the N1.3 million it would have assisted the plaintiff to come out of its problems……………. It is not true that by seizing the cheque of N1.3 million, I was out to destroy the plaintiff. I was performing my duty as a receiver of the company. Cash is one of the assets of the plaintiff company’.
P.W.1 in his testimony made a general and wide statement that the 1st appellant collected the cheque in question from Guffanti on 4/2/88 and issued a receipt therefore. The 1st appellant denied collecting the cheque from Guffanti but it agreed that it issued a receipt for it. Guffanti was not called to say when and how it handed over the cheque to the 1st appellant.
The 2nd appellant as DW2, confirmed that the cheque was voluntarily handed over to him as Receiver/Manager by Guffanti; and the fact that he was cross-examined on whether he had seized the cheque or not proved that the cheque was infact in his hand before it got to the 1st appellant. The appointment of the 2nd appellant as Receiver/Manager was made pursuant to clause 32 of Exhibit 14 and it complied fully with the requirement of that clause as can be seen in Exhibit 15. And he has full powers under paragraph 7 of clause 32 above mentioned to collect the said cheque and pay it to 1st appellant towards that satisfaction of the loan secured by Exhibit 14. Also shortly after his appointment, the 2nd appellant wrote a letter to the respondent through its counsel informing it of his appointment and demanding the payment of the cheque in question to him. See Exhibit 11D.
The learned trial Chief Judge nullified the appointment of the 2nd appellant on the grounds that it:-(page 159 of record)
(a) is in conflict with the spirit and general intendment of the provisions of paragraph (7) of clause 32 of Exhibit 14,
(b) is not at all in the interest of the borrower, i.e. plaintiff,
(c) destroys the basis of a fiduciary relationship between the agent and the principal. i.e the plaintiff.
SC. 227/1993