Union Bank of Nigeria Plc & Anor V. Sparkling Breweries Ltd. & Anor (2000)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

This appeal is from a judgment of Narebor, J., of the Warri High Court in suit No.W259/89 given on the 19th day of April, 1996, in which the learned trial Judge dismissed the appellants’ counter-claim in its entirety.

The respondents herein as plaintiffs instituted an action against the appellants in suit No.UCH/77/88 at the Ughelli Judicial Division wherein the respondents sought inter alia, to challenge the legality of certain instruments which conferred upon the appellants the right to manage the respondents businesses and undertakings in the events of the respondents default in repaying certain loan facilities. The respondents thereafter in 1988 obtained an interim injunction restraining the 2nd appellant from managing the undertakings of the respondents.

On the 14th of November, 1989 after the appellants had filed their statement of defence and counter-claim, suit No.UHC/77/88 was transferred under sections 35 & 36 of the Bendel High Court Laws of 1976 from the Ughelli Judicial Division to Warri Judicial Division and given suit No. W/259/89.

Thereafter, the respondents filed a notice of discontinuance and the respondents claim was on the 2nd of December, 1994 struck out. The appellants’ counter-claim was also on that day struck out but was thereafter, upon an application brought by the appellants, relisted on the 27th of March, 1995. The appellants counter-claim proceeded to trial with both parties calling evidence and as earlier mentioned the appellants counter-claim was dismissed in toto. By a notice of appeal dated the 31st day of May, 1996, the appellants appealed to this court. It is pertinent to note that the High Court in dismissing the counter-claim held as follows:-

(1) That exhibits A, B, H, H1, J and J1- the statements of accounts were of no probative value and were thereby discountenanced as they offended against sections 96(1) (h), 96(2) (e) and 37 of the Evidence Act (old one).

(2) That the amounts stated in exhibits M and M1, the letters of demand dated 29th of June, 1988 were at variance with the appellants’ counter-claim and that while the amounts stated in these exhibits were neither averred to in the counter-claim, the appellants only witness did not in his evidence state the amount demanded in those exhibits and furthermore the amounts stated in the exhibits ere not accurately reflected in the statement of account already discountenanced.

(3) That there was no evidence to establish the offer or grant of the said facilities by the appellants.

(4) That exhibits K and K1 – the registered Deeds of Debenture and Exhibit P, letters written by the respondents did not constitute proof of respondents indebtedness to any specific sum neither did they constitute admission of indebtedness.

(5) That exhibits C and C1, notification letters of appointment of the 2nd appellant as receiver are invalid being contrary to section 1250 of the Property and Conveyancing Law (Cap. 129) Laws of former Bendel State, 1976.

(6) The appellants claim for N50 million damages suffered as a result of the injunction granted in 1988 was not sustainable because:

(a) The injunction was granted in suit No. UHC/77/88 a different suit and therefore the claim should be directed to the Ughelli High Court.

(b) Not enrolled order of the said injunction was in evidence.

(c) The appellants did not particularise the damage being claimed.