Vesa Foods Agencies Limited & Anor V. Access Bank PLC (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment)

The first Appellant herein, is a trading company and customer of the Respondent, with account No. 110770001. In the normal course of business, first Appellant applied for and obtained overdraft facilities to finance the importation into Nigeria of frozen fish.

By the terms of the offer, the first Appellant would provide 20% of the value of the letters of credit, while the Respondent would provide 80% that second Appellant would execute personal guarantee to repay the facility granted to the first Appellant on demand. That the Respondent would also have lien on the imported stock, Triana Limited was therefore appointed as warehousing agent with specific instructions to release the stock to first Appellant upon receiving warrant to release from the Respondent.

First Appellant said the Respondent started selling the stock directly to members of the public and failed to make payments into its account.

The Respondent as Plaintiff before the lower court said, the Appellants/Defendants failed to repay their debt and therefore took out writ against the Appellants/Defendants dated 26th October 1998; The plaintiff Respondent therefore claimed as follows against the Appellants/Defendants before the lower court as per, Respondent/Plaintiffs amended statement of claim dated 19th February 2001.

a. The sum of N235, 100,240.82 being the amount owed as at 8/10/98 by the 1st Defendant on account of the various aforesaid banking facilities granted to the 1st Defendant by the Plaintiff, and which were personally guaranteed by the 2nd Defendant

b. Interest on the aforesaid sum of N235, 100,240.82 from 8/10/98 at the rate of 30% per annum until the date of Judgment and thereafter at the rate of 25% per annum until Judgment is fully satisfied.

c. A declaration that, the deposit of the title deeds of the two properties named hereinafter by the Defendants with the Plaintiffs as security for the aforesaid banking facilities has created an enforceable mortgage in favour of the plaintiff in respect of the following properties.

i. Plot 12, Block 22, Lekki Phase 7 Eti-Osa Local Government Area Lagos State, which is registered as No. 47/47/91D and dated 18/1/91 in the Lands Registry in the office at Ikeja.

ii. Parcel of Land situate at 24 Oregun Road, Olusasun Village Ojota, Lagos, covered by deed of assignment registered as No. 2/2/1932 in the Lands Registry in the Office at Ikeja.

d. A declaration that the Plaintiff is entitled to sell the two aforesaid properties in order to realize or recover the Defendants debts which arose out of the aforesaid banking facilities which were granted to the 1st Defendant by the Plaintiff.

e. An order granting leave to the Plaintiff to sell immediately the two properties mentioned above in order to enforce the above mentioned securities and to realise the amount plus all accrued interest thereon to be owed to the Plaintiff by the Defendants as claimed above.

On the 5th day of March 2008, the Defendant filed 5th Further Amended Statement of Defence and Counter Claimed against the Plaintiff/Respondent as follows:-

(a) N800, 961,518,60 special damages for breach of contract.