Universal Trust Bank Limited And Ors V. Dolmetsch Pharmacy (Nigeria) Limited (2007)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

This is an appeal against the judgment of the Court of Appeal holden at Enugu in appeal No.CA/E/58/99 delivered on the 8th day of May, 2001 in which the court dismissed the appeal of the appellants and affirmed the decision of the trial court refusing to set aside or discharge the ex-parte order made on the 27th day of February, 1997. It is not disputed that the respondent is a customer of the 1st appellant by virtue of which it was granted various credit facilities by the 1st appellant on request. As security for the various facilities, the respondent executed a deed of legal mortgage. exhibit D2, over its estate at Nkpo – Obosi Road, Onitsha. The respondent also executed an all assets debenture wherein it charged all its assets both present and future including but not limiting to floating assets as security for the loan. Exhibits D11 and D12 are the all assets debenture and the certificate of registration of the said debenture at the Corporate Affairs Commission respectively. When the respondent failed to liquidate the indebtedness, the 1st appellant, in exercise of the powers conferred on it by clause 5 of exhibit D11, appointed the 2nd and 3rd appellants as receivers/ managers over all the assets and management of the respondent’s business, vide exhibit D19 which appointment was duly registered with the Corporate Affairs Commission vide exhibit 20. The 2nd and 3rd appellants took over the management of the assets and business of the respondent, according to the appellants, on the 20th day of February, 1997. On the 26th day of February, 1997, the respondent instituted an action at the Federal High Court holden at Enugu in suit No.FHC/ AN/11/97 against the appellants in which it claimed the following reliefs:-

“(1) A declaration that the Deed of Debenture dated the 11th of December 1995 is invalid, null and void and that the consequent appointment of the 2nd and 3rd defendants as receiver/manager of the plaintiff company is invalid, null and void and of no effect whatsoever.

(2) A declaration that the said Deed of Debenture, even if valid, does not incorporate a legal mortgage over plaintiff’s landed properties, if any.

(3) A declaration that the said Deed of Debenture, even if valid, does not cover the landed properties situate at Agulu in Anaocha Local Government Area and No.5 Udodi Crescent Omoba Phase 11, Onitsha both in Anambra State, in that neither is the property of the plaintiff company.

(4) Damages against the defendants jointly and severally.An order of perpetual injunction restraining the defendants, their officers, servant, agents/privies or any of them or otherwise howsoever from interfering or inter-meddling with and/or disruption howsoever the management by the plaintiff company of its affairs.”

Along with the writ of Summons the respondent filed a motion ex-parte praying the court for inter alia, the following orders:-

“1. An order of interim injunction restraining the defendants, their agents and/or privies jointly and severally from further trespassing and/or interfering with assets, business and operations of the plaintiff applicant pending the determination of the motion on notice filed in the suit.

2. An order of interim injunction restraining the respondents, their agents/privies jointly and severally from further trespassing on the premises at Agulu in Anaocha Local Government Area and No. 5 Udodi Crescent, Omoba, Phase II, Onitsha, both in Anambra State, which properties do not belong to the plaintiff/ applicant, and in any case are not covered by the Deed of Debenture on the strength of which the defendants/ respondent purported to have acted pending the determination of the motion of notice filed therein.
3. An order of interim injunction restraining the defendants/ respondents, their agents and/or privies jointly and severally howsoever from continuing to threaten the operations of the plaintiff’s business and assets pending the determination of the motion on notice.”

The ex-parte motion was supported by an affidavit of 32 paragraphs and many exhibits. The trial court, after due consideration, granted the orders on 27/2/97.

On the 20th day of March, 1997, the appellants, as defendants, filed a motion on notice before the trial court for the following orders: –

An order extending the time within which the defendants/applicants may apply for a discharge of the order of interim injunction granted by this Honourable court on 29th February, 1997 in favour of the plaintiff/respondent.

An order discharging the order of interim order granted on the 27th February, 1997 by the Honourable court.” The grounds on which the application to discharge the order are based are stated to be:-

“(a) The plaintiff suppressed material facts in obtaining the order.

(b) There is no matter of urgency for which the order was obtained