Urs Reichie V. Nigeria Bank For Commerce And Industry (2016)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal from the Court of Appeal, Lagos Division Coram: George A. Oguntade, Pius Olayiwola Aderemi and Christopher M. Chukwuma-Eneh, JJCA against the judgment delivered by P.O Aderemi, JCA (as he then was) on 02/12/2002 in which that Court held there was no contractual relationship between the Plaintiff/1st Respondent and 3rd Defendant/Appeltant/Respondent necessitating an order for summary judgment under the provisions of the Lagos High Court (Civil Procedure) Rules by which the Court below allowed the appeal, set aside the judgment of the trial Court dated 4th July, 1994 per Akinsanya J, and dismissed the suit as instituted in the trial Court against the Appellant now Respondent.

BACKGROUND FACTS:

The facts would be better gleaned with reference to the Plaintiff/Appellant’s Statement of Claim and the Affidavit in support of the Summons for Judgment deposed to by Oluyomi George-Taylor at the trial Court as follows:-

(a) The Plaintiff/Appellant is a business man resident in Switzerland.

(b) The 1st Defendant is the alter ego of the 2nd Defendant which is a limited

liability company with its office at Akure, Ondo State.

(c) The 3rd Defendant is a banker carrying on business in Nigeria.

(d) About November, 1990, the 1st and 2nd Defendants raised a loan of #90,510,00 from the Respondent with which they met certain obligation of the 2nd Defendant to the 3rd Defendant by way of a non-refundable part payment of legal fees, the repayment of which, it was understood, that “the 1st and 2nd Defendants shall be responsible for jointly and severally as primary debtors.”

(e) The 1st and 2nd Defendants, by their solicitors’ letter to the Plaintiff’s agent, of 07/12/92, exhibited to the verifying affidavit in support of the summons for judgment, confirmed the payment of the sum of N90,510.00 to the Appellant but stated that it was “on the understanding that the said amount would not be refundable in case the project did not take off.”

The Plaintiff in his Statement of Claim at the Trial Court claims:-

“19 WHEREOF the plaintiff claims against the Defendants jointly and severally the sum of N90,510,00 (Ninety Thousand, Five Hundred and Ten Naira only) with interest at the rate of 45%per annum from the 9th day of January, 1991 until the

final liquidation of the said sum being:

(i) Money payable by the Defendant to the Plaintiff on account of money had and received by the Defendants for the use of the Plaintiff,