Nigerian Industrial Development Bank Ltd & Anor. V. Fembo Nigeria Ltd & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Ondo State High Court, Akure Division, Coram: G.O. Olateru Olagbegi, J. (as she then was) in Suit No. AK/6/95 delivered on 20th July, 1999.

In an Amended Statement of Claim dated 31st March, 1998, the Respondents herein, as Plaintiffs at the lower Court, sought for the following reliefs against the Appellants herein, as the defendants jointly and severally. They are as follows:-

i. A DECLARATION that by the combined effect of the loan and mortgage agreement dated the 11th day of September, 1989, a supplemental deed dated 13th day of July, 1990 and a second supplemental agreement dated 6th December, 1992 the banking facilities granted or advanced to the 1st Plaintiff by the 1st defendant are not yet due for repayment and’ it cannot be due for repayment until after the implementation of the 1st Plaintiff’s project and commissioning of same; ii. A DECLARATION that due to the failure of the 1st defendant to release to the 1st Plaintiff in full both the foreign and local components of the facilities approved in its favour, it has been impossible for the 1st Plaintiff to implement the said project and commission same.

iii. A DECLARATION that as a result of the failure of the 1st defendant to release in full both foreign and local components of the facilities approved for the 1st Plaintiff, thus leading to the inability of the 1st Plaintiff to complete the said project and commission same, the 1st Plaintiff has suffered damages and losses;

iv. A DECLARATION that if the Plaintiff is indebted to the 1st defendant at all, the said indebtedness does not and cannot exceed the actual amount made available to it by the 1st defendant without any accruable interest.

v. A DECLARATION that having not commissioned the 1st Plaintiff’s project and or factory as required under and by virtue of clause 9(1) of the loan mortgage agreement between it and the 1st

defendant any money owed to the 1st defendant by the 1st Plaintiff is not yet due for repayment and therefore the defendant in its letter of 8th December, 1994 is pre-emptory premature, uncalled for, unnecessary and, therefore, null and void and of no effect whatsoever;

vi. A DECLARATION that the procurement and or instigation of the arrest and detention of the 2nd Plaintiff by the defendant on or about the 8th day of December, 1994 is illegal, unlawful and done in utmost bad faith.

vii. AN ORDER commanding the 1st defendant to pay or remit to the 1st Plaintiff:-

a) A sum of DM 97,949.10 or its Naira equivalent at the existing rate being the interest due’ on the foreign Exchange Deposit paid or received by the 1st defendant or its correspondent bank on behalf of the 1st Plaintiff;

b) A sum of DM 27,368.00 or its Naira equivalent being the balance due on or yet to be disbursed to the 1st Plaintiff out of the approved foreign loan of DM660,910.40;

c) A sum of N1,268,300.43 being the balance due to or yet to be disbursed to the 1sf Plaintiff out of the approved local loan;

d) A sum of DM 89,300.66 and N919,064.81 which the 1st defendant admitted owing the 1st Plaintiff as at 31st December, 1994.