Patama Limited & Ors V. Union Bank Of Nigeria PLC (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering The Leading Judgment)

This is an appeal against the judgment of Honourable Justice R.I.B. Adebiyi (Mrs) of the High Court of Lagos State, Lagos Judicial Division. The Appellant instituted the suit at the High Court via a writ of summons dated the 6th day of July, 1995 accompanied by a statement of claim of the same date:

1. The sum of N=15,370,175 (Fifteen Million, Three Hundred and Seventy Thousand, One Hundred and Seventy Five Naira only) representing damages suffered by the Plaintiffs for the breach of contract consisting in the wrongful refusal of the Defendant to allow the Plaintiffs draw on the balance of the over draft facility granted to the Plaintiffs by the Defendants and secured by the Deed of Title of the second Plaintiffs property.
2. An order that Defendant release the second Plaintiffs Deed of Title.
3. An order discharging the second, third and fourth Plaintiffs as particulars of special damages total N=15,370,175.
4. The Plaintiffs also claim the cost of this suit.

The Defendant filed a statement of defence and counter-claim on the 10th day of October, 1995. The Appellant filed an amended statement of claim on the 18th December, 1997 and a second amended statement of claim on the 16th December, 2003. On its part, the Respondent filed its statement of defence and counter-claim on the 10th day of October, 1995 and filed another one on the 9th day of November, 1995.

The Appellant filed a reply to statement of defence and sequence to counter-claim in response to the statement of defence and counter-claim filed on the 10th day of October, 1995. The Defendant corrected its statement of defence just once on the 10th day of January, 2005. It is worth of note that the statement of defence and counter-claim filed on the 10th day of October, 1995 has the sum of N=7,669,769.16 as the monetary claim by the Respondent against the Appellant, in the counter-claim.

However, in the exhibit attached to the motion for leave to amend the statement of defence and counter-claim, the relief claimed by the Respondent in the counter-claim was N=1,769,669.16. please see pages 97-106 of the record of appeal. The amended statement of defence and counter-claim made pursuant to the order of court on the 11th November, 2004 bears the same sum of N=1,669,769.16 as the outstanding balance on the overdraft facility owed the Respondent.

After the trial, the Respondent filed its written address on the 13th day of June, 2005. The Appellant filed their written address on the 11th day of July, 2005. The Respondent filed a written reply on points of law on the 11th day of July, 2005. The Appellants’ notice of appeal dated the 16th December, 2005 and filed same date. The Respondent on its part filed a cross appeal on the 9th day of February, 2006.

ISSUES FOR DETERMINATION

i. Whether or not the lower court properly appraised the evidence adduced by the parties at the trial and if the answer is in the negative whether there was any evidential basis upon which the lower court could have reduced the sum of N=1,251,500.00 claimed as special damages or the sum of N=450,000.00 claimed specifically as loss of profit on two contracts as pleaded and proved by the Appellants at the trial court and whether the judgment was not thereby perverse and a miscarriage of Justice.

ii. Whether the lower court was right in awarding the Respondent the sum of N=14,112,626.10 as per its counter claim when:

a) The amount awarded exceeded the amount pleaded by the respondent in the amended statement of defence and counter claim

b) In making the award, the lower court relied solely on the ipse dixit of DW1 without more.

iii. Whether or not the cluster of reliefs by the Respondent and the award by the lower court was right and proper and met the Justice of the case and whether deed of legal mortgage was before the court and if the answer is in the affirmative whether the lower court properly appraised the document at the trial in order to ascertain its validity and if the answer is in the negative whether Court of Appeal can interfere and void the Mortgage transaction.

iv. Whether from the totality of the evidence adduced at the trial, the judgment of the lower court was right and had not entailed a miscarriage of Justice.

The learned counsel to the Respondent in his amended Respondent/Cross Appellant’s brief of argument and reply to Appellant’s notice of preliminary objection filed on 10th March, 2014, formulated a sole issue for determination in response to the main appeal. The issue raised is as follows: