Union Bank Of Nigeria Plc V. Uwa Printers Nigeria Ltd. & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Akwa Ibom State, Eket Judicial Division presided over by Udoh J. which found for the Plaintiffs in an action arising from abuse of judicial process and damages resulting from negligence, unlawful seizure and disposal of property during the pendency of an action between the parties and awarded a total of N515,500,000.00 as special and general damages and a further sum of N40,000.00 as costs.

The facts leading to this appeal may be stated as follows:

In 1992, the 1st Respondent applied and obtained a loan facility of N2.9 million from Union Bank of Nigeria, Eket Branch. Out of this amount, the Bank released N1,649,300.00 by direct disbursements to the Nigerian Newsprint Manufacturing Company (NNMC), Oku Iboku, for the procurement of newsprint materials. The loan transaction was reduced into an All Asset Legal Mortgage Debenture dated 28th July, 1992 which was tendered as Exh. 11. Following failure by the 1st Respondent to service the loan facility as a result of its inability to produce school stationeries for lack of raw materials, the Bank in exercise of its rights under the Mortgage Debenture appointed a receiver to sell the mortgaged property and realise the debt.

The receiver applied by motion ex-parte and the Commissioner of Police Akwa Ibom State was ordered to provide Police protection which enabled the receiver to move the mortgaged assets of the Plaintiff from site at Km 3, Oron Rd., Eket to Union Bank Regional Office in Port Harcourt, Rivers State. Having successfully challenged the Exparte on appeal in appeal No.CA/C/238/98 in which judgment was delivered on 6/7/2000, the Plaintiff took out a fresh action in the Akwa Ibom State High Court, Uyo Judicial Division in Suit No. HEK/139/2002 and endorsed on the Writ is a claim that –

“The plaintiffs’ claim against the Defendants jointly and severally is a Declaration that the purported removal of Plaintiffs property for safekeeping through a Court Order and thereafter selling same is null and void.

2. An order directing the defendants to return all the plaintiffs properties removed, vide Court Order, back to the plaintiffs or pay the sum of N615,500,000.00 (Six Hundred and Fifteen Million, Five Hundred Thousand Naira Only) as Special and General damages.”

The amount was broken down as follows:

Special Damages – N215,500,000.00

General Damages – N400,000,000.00

= = = = = = = = =

Total = N615,000,000.00

This led to the judgment in favour of the 1st and 2nd plaintiffs and the award of N515,000,000.00 which led to this appeal.

The Amended Notice of Appeal contained ten grounds of appeal from which the following six issues were distilled for consideration:

1. Whether the learned trial Judge had jurisdiction to entertain the matter
2. Whether this suit was not an abuse of the judicial process.
3. Whether having regard to the defence the learned trial Judge was right in holding the defendant liable to the claims of the plaintiffs as conceived and canvassed.
4. Whether the learned trial judge considered the case of the defendant before coming into his decision and if not whether same did not occasion a miscarriage of justice.
5. Whether the learned trial judge was right in the special and general damages he awarded having regards to the evidence adduced before him.
6. Whether the 2nd plaintiff (2nd Respondent) was entitled to judgment in this case.

While adopting the issues as raised in the Appellants brief the 1st and 2nd Respondents objected to the appeal and filed a Notice of Preliminary Objection that the appeal is incompetent and should be dismissed on the following grounds: