Steel Bell Nigeria Limited & Ors V. Nigerian Deposit Insurance Corporation & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

The appeal is against the Judgment of the High Court of Lagos State, Lagos Division delivered by A. A. Phillips J. on the 25th Day of January, 2013.

The Suit leading to this appeal was commenced in the High Court of Lagos State, Lagos Division by the claimants (now Appellants) vide their writ of summons filed on 24-11-1994. The original 1st Defendant in the suit was (Pinnacle Commercial Bank Ltd) but subsequently substituted with the liquidator (Nigerian Deposit Insurance Corporation) now 1st Respondent.

The 4th Respondent herein was not part of the original defendants in the suit but subsequently applied on 13-3-1997 to be joined in the suit and was thus joined as the 5th defendant.

The bone of contention is all that property situate and being at plot 308 Younis Bashorun Street, Victoria Island, Lagos. By Tripartite Legal Mortgage made between the 1st and 3rd Appellant and the 1st Respondent dated 27th January, 1993 and registered as No 64 at page 64 in volume 1945 of the Land Registry office at Lagos, the said property was mortgage as security for a credit facility granted by the 1st Respondent to the 1st Appellant. Due some difficulties in repayment of the loans as agreed, the 1st Respondent in accordance with the loan agreement, appointed a Receiver who after series of correspondences with 3rd Appellant including threats of sale if the property of the loan is not repaid eventually informed the 1st Appellant that the property has been sold for the sum of N60 million naira and that the balance due to the 1st Appellant from proceeds of sale after deduction of the amount due for Payment as loan was being returned to the 1st Appellant.

This prompted the Appellant to commence the action in the Lower Court on the 24-11-1994, claiming certain reliefs. It was followed with a motion for interlocutory injunction to restrain the 1st Respondent from selling the mortgaged property. The defendants (now Respondents) filed their statement of defence as well as counter affidavit to oppose the application for interlocutory injunction.

The said application was refused by the Lower Court and this issue of injunction was fought up to the Supreme Court for a period spanning ten years until the Supreme Court in 2004 ordered that the matter be remitted to the trial court for hearing of the substantive suit. The suit however, did not take off at the trial court until 2010. The Appellants subsequently filed an amended writ of summons and statement of claim dated 27-6-2011 while the 4th Respondent’s statement of defence and counterclaim is dated 13-7-2011. The 2nd, 3rd and 5th Respondents’ statement of defence was filed on 10-10-2011.

During the Pretrial conference, the 2nd, 3rd and 5th Respondents brought an application for special case to be considered pursuant to order 28 Rules (1) & (2) of the High Court of Lagos State (Civil Procedure) Rules 2004. Upon the concurrence of parties and approval of the court, written addresses were order filed and served on the issues stated in special case. The said written address were subsequently adopted and in a judgment delivered on 25-1-2013, on the special case, the Appellants’ suit as well as the 4th Respondent’s counterclaim were dismissed and the Appellants were asked to yield up possession of the property in dispute.

The Appellants were aggrieved with the outcome of the special case proceedings and accordingly filed a notice of appeal dated and filed on 28-1-2013. An Amended Notice of Appeal was subsequently filed on 29-4-2013 but deemed properly filed by order of this court on 18-11-2013 and it contains seven grounds of appeal.

Briefs of argument were eventually filed and served by the parties in compliance with the relevant Rules of this court.

The Appellants’ brief of argument is dated 7/6/2013 and filed on 10-6-2013. The 1st Respondent’s brief is dated and filed on 8-7-2013, the 2nd, 3rd and 5th Respondent’s brief 18-11-2013 was filed on 19-11-2013 but deemed properly filed on 21-11-2013. The 4th Respondent’s brief of argument dated 17-9-2011 was filed on 18-9-2013. At the hearing of the appeal on the 4-6-2014, parties duly adopted and relied on their respective briefs argument.

In the Appellant’s brief of argument, five issues were formulated for determination as follows:

(1) Whether the learned trial judge was right in granting an order for possession forthwith against the Appellants in this suit in respect of the property at Plot 108, Younis Bashorun Street Victoria Island Annex, Lagos, when same was not claimed in the application of the 2nd, 3rd and 5th Respondents. (Ground 1)

(2) Whether the learned trial was right in considering the written statement on oath of the claimant’s witness, Mr. Gabriel Oseke and the Documents to be relied upon at the trial in her decision on the application for special case brought by the 2nd, 3rd and 5th Respondents when trial had not commenced. (Ground 2)