FIDELITY BANK PLC v. NOCHIFE (NIG.) LTD & ANOR (2022)

FIDELITY BANK PLC v. NOCHIFE (NIG.) LTD & ANOR

(2022)LCN/16674(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Friday, May 27, 2022

CA/AW/61/2018

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

FIDELITY BANK PLC APPELANT(S)

And

1. NOCHIFE NIGERIA LIMITED 2. NOBERT OBI RESPONDENT(S)

RATIO

WHETHER OR NOT ALL BRIEFS OF ARGUMENTS MUST BE CONCLUDED WITH A NUMBERED SUMMARY OF THE POINTS RAISED AND REASONS FOR WHICH THE ARGUMENT IS FOUNDED

As is becoming my practice of recent, I will not summarize the arguments of counsel on the issues canvassed in their briefs. This is partly in reaction to the refusal or failure of parties to comply with the Rules of Court in filing their briefs. Specifically, by ORDER 19 (3) (4) of the Rules of Court, 2021, all briefs shall be concluded with a numbered summary of the points raised and the reasons upon which the argument is founded. There is no doubt that the summary of the arguments in the judgment will give a bird’s eye view of the case being decided. The rationale for this rule no doubt among others is to ease the work of the Judge so that he does not need to go through the often times verbose and repetitive briefs and battle with summarizing same. Instead, these numbered summaries now suffice as arguments of parties on the issues raised and can therefore be simply lifted or adopted. PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): At the High Court of Anambra State, Onitsha Judicial Division, the plaintiffs/respondents by a further amended Writ of summons filed on the 25th May, 2006 claimed against the defendant/appellant as follows:
a. A Declaration that the debt initially owned by the 1st Plaintiff to the Defendant, arising from the credit facility granted by the Defendant to the 1st Plaintiff is the sum N5,652,788.56 as at 31/10/99 less the sum of N1M (One Million Naira) which the plaintiff subsequently lodged into the account.
b. A Declaration that by its seizure of the goods imported with the said credit facility, to wit; 170 rolls of impregnating materials, (insulting papers) measuring 23,800 meters valued about N10,000,000.00 and the Plaintiff other wares, to wit; 420 rolls of sleevings measuring 72,000.00 meters valued N4,320,000.00, from the Plaintiff’s warehouse on account of the said loan and their subsequent sale by the Defendant, the defendant has thereby frustrated the Plaintiffs from their repayment obligation under the loan contract and have thereby frustrated the contract.
c. A Declaration that the Defendant’s seizure and unilateral sale of 420 rolls i.e 72,000 rolls meters of sleevings from Plaintiffs’ warehouse which goods were not imported with the Defendants’ loan is wrongful.
d. A declaration that by the Defendant’s seizure and subsequent sale of the Plaintiffs’ 170 rolls (23,800 meters) of impregnating materials (insulating papers) valued at about N10,000,000.00 and 420 rolls (72,000 meters) of sleevings valued N4,320.00 the 1st Plaintiff is entitled to the sum of N9,668,211.44 being proceeds in excess of N5,541,788.56 (less over N1M which the Plaintiff subsequently paid into the account) from the Defendant’s sale of the 1st Plaintiff’s above products.
e. The sum of N1,000,000.00 (One Million Naira) from the defendant being general damages for depriving the Plaintiffs the use of their warehouse at No. 18 Ihembosi Street Woliwo Layout, Onitsha.
f. An Order of the Court for the Defendant to release or surrender to the Plaintiffs the document to all the landed properties, which the 2nd Plaintiff provided as collateral for the said credit facility, to wit;
g. Plot No. 54 Block No 1 Federal Site and Service scheme, Onitsha Anambra State.
h. Plot No. 646 phase 1 Trans Nkisi Layout Onitsha.
i. A parcel of land at Fiezel Estate, Awada, Onitsha and
j. A plot of land at Udoji Road, Ozubulu.

Responding to the plaintiffs’ claim the defendant filed its amended statement of defence on the 28th September, 2009.

Pleadings were fully filed and exchanged between the parties after which the suit was set down for hearing. In proof of their case, the 2nd plaintiff testified on their behalf as PW1 and tendered several exhibits. The defendant in its defence also called only one witness, DW1 and tendered several exhibits as well.

The plaintiffs’ case is that the 1st plaintiff represented by the 2nd plaintiff has an account with the defendant bank. The plaintiffs had always enjoyed credit facilities from the bank which they always repaid. The facility that gave rise to this case was a N10,000,000 (Ten Million Naira) import facility to import insulating paper. The contention of the plaintiffs/respondents was that due to the inordinate delay on the part of the defendant in processing the letters of credit, the arrival of the goods was delayed. This delay caused a sharp drop in both the demand and prize of the goods. Part of the terms of the contract for the facility was that the facility shall be repaid through the proceeds realized from the sale of the goods. The plaintiffs had also secured the facility with some of their properties as collateral. The goods were stored in the 1st plaintiff’s warehouse pending when the market price of the goods will improve pursuant to the agreement of both parties. Meanwhile, the plaintiffs alleged that the defendant broke into the warehouse and carted away all the goods therein including some goods belonging to the 1st plaintiff bought with a facility secured from another bank other than the defendant bank. The defendant on its part and in its defence denied frustrating the repayment of the facility by the plaintiffs/respondents. They also denied breaking into the warehouse but explained that they merely unlocked the warehouse with their key and removed the goods to secure their investment!

At the conclusion of hearing, parties filed, exchanged and adopted written addresses. In a considered judgment delivered on the 2nd June, 2014 his Lordship, Justice G. C. Anulude entered judgment in favour of the plaintiffs as claimed. This appeal is in dissatisfaction of the said judgment.

The appellant entreated the Court to determine the following three issues distilled from the grounds of appeal as contained in the brief of argument settled by MR. C. P. Oguchienti on the 31st January, 2018:
i. Whether from the facts and evidence led in the trial, the Respondents proved the criminal allegation that the Appellant broke into the Respondents’ warehouse and carted away Respondent’s good financed by Equitorial Trust Bank which were also in the Respondents’ warehouse. (Grounds 1 and 2)
ii. Whether the Respondents proved that they were no longer indebted to the Appellant to be entitled to a return of the title document deposited as collateral for the grant of import Finance Facility (IFF) by the Appellant (Grounds 3, 4 and 6)
iii. Whether the Respondents proved that the Appellant frustrated the contract, thereby making it impossible for the Respondents to liquidate the import facility. (Grounds 7 and 8)

The respondents on their part in their Brief of Argument settled by Sir Ejike Ezenwa on the 29th August, 2019 also formulated three issues thus:
1. Whether the repayment of the N5,651,788.56 debt owed the Appellant by the Respondents is not frustrated by the Appellant’s unlocking of the Respondents warehouse and carting away of the goods therein.
2. Whether the Respondents are entitled to the refund of N9,688,211.44 comprising N4,320,000.00 worth of goods financed by Equatorial Trust Bank, the N1 Million lodgment the respondents made after their debt to the appellant was limited to N5,651,788.56 as well as the N4,320.000.00 balance outstanding after the respondents’ N5,651,788.56 debt was deducted from the N10 million worth of the imported goods.
3. Whether the Respondents are not entitled to the release of title documents relating to their landed properties which they used as security to cover the Appellant’s exposure.

The issues raised by both parties are more or less the same except for a slant given in issue (1) portraying a different meaning to the issue as raised by the respondent. This is particularly noticeable under issue (1). The appellant has given the expression “broke into” as used by the respondent to connote some criminal allegation. This slant does not come out in the same issue raised by the respondent. For this reason and more importantly because the appellant is the aggrieved party before the Court, I elect to determine this appeal on the three issues formulated by the appellant.

As is becoming my practice of recent, I will not summarize the arguments of counsel on the issues canvassed in their briefs. This is partly in reaction to the refusal or failure of parties to comply with the Rules of Court in filing their briefs. Specifically, by ORDER 19 (3) (4) of the Rules of Court, 2021, all briefs shall be concluded with a numbered summary of the points raised and the reasons upon which the argument is founded. There is no doubt that the summary of the arguments in the judgment will give a bird’s eye view of the case being decided. The rationale for this rule no doubt among others is to ease the work of the Judge so that he does not need to go through the often times verbose and repetitive briefs and battle with summarizing same. Instead, these numbered summaries now suffice as arguments of parties on the issues raised and can therefore be simply lifted or adopted.

As I have pointed out earlier in this judgment the first issue raised by both parties are the same except that the issue as raised by the appellants connotes an allegation of crime by the Respondents against the appellant.

This appellant issue (1) dovetails into its issue (3). Issues (1) and (3) will therefore be taken together. The question therefore is what the respondents meant when they alleged that the appellant broke into their warehouse and carted away their goods including goods financed by Equatorial Trust Bank. The dictionary meaning of ‘break-in’ is “a force or entry into a building, car, computer system etc, typically to steal something …” (Emphasis Provided).
From the definition above it is clear that an unconsented entry is a break-in. The appellant from the evidence on record admitted that they carted away the respondents’ goods in the warehouse to secure their investment. Their only disagreement is that they used their key and opened the door and so it was not a break-in. The evidence on record not challenged by the appellant is that by the agreement between them, the appellant cannot go to the warehouse housing the goods in question without the respondents. Going there without the consent or knowledge of the appellants amounts to ‘unconsented’ entry into the warehouse within the meaning of the definition of break-in. A break-in is defined to typically mean an illegal entry to steal something. However, ‘typically’ only means representative, symbolic or normal and not exclusive. ‘Break-in’ as used in the circumstances of this case means only an unconsented entry and was in no way intended to be construed as stealing or theft, as the appellant alludes to. This position is fortified by the finding of the trial Court that the claim was based on a breach of contract and not any commission of a criminal offence. The fact that the appellant went there without the knowledge and consent of the Respondents was contrary to the agreement, Exhibit ‘A’ between the parties which stipulate that goods can only be removed from the warehouse in the presence of the 2nd plaintiff and his accounting officer. The appellant from their admission and evidence on record did not inform or go with the 2nd plaintiff or their accounting officer when they carted the goods away. The real issue in my view is not whether the appellant broke in or entered the warehouse by using their key but whether they took the goods away in breach of their agreement to notify the plaintiffs or the 2nd plaintiff to witness the removal of the goods or not. Their evidence was that they did not. The trial Court therefore rightly found them liable for breach of contract. There is clearly no allegation of crime against the appellant to warrant the slant of a criminal allegation being given by them to make a case for the respondents that was not their case before the lower Court. The trial Court also found that the agreement between the parties was for the respondents to repay the facility from the proceeds of the sale. That having carted away the goods from the warehouse there was nothing for the respondents to sell to offset his indebtedness to the appellant. That the appellant by its breach frustrated the contract in respect of the letter of credit making it impossible for the plaintiffs/respondents to fulfil their own side of the agreement. In resolving issue (1) against the appellant therefore, I hold that the respondents did not make any criminal allegation against the appellant. For indeed what criminal allegation can they make against them, theft/stealing? The unchallenged evidence in this case is that the appellant granted a facility to enable the respondents import the goods in question. These goods were warehoused in the plaintiffs’ warehouse only because the defendant did not have space. In other words, at all times material the appellant had a lien on these goods. Having an interest/right, lien, etc in the property, the appellant cannot steal its own property. I view the allegation of crime being peddled by the merely appellant as akin to calling a dog a bad name to spite its face. The claim of the respondents in the Court below is very clear. It is as I understand merely a claim for declaration that the seizure of the goods and their subsequent sale by the appellant was wrongful. And a claim for the excess from the value of the goods less the respondents’ outstanding indebtedness to the appellant on the facility. There is no claim on the face of the respondents’ suit at the lower Court predicated on a criminal allegation to require them to prove beyond reasonable doubt. In sum, I am satisfied that there is no allegation of crime in the plaintiffs/respondents’ claim before the lower Court. The trial Judge properly evaluated the evidence and correctly reached the decision that the appellant acted in breach of its agreement with the respondents and rightly found for the Respondents. Consequently, I resolve this issue in favour of the respondent and against the appellant.

The second issue is whether the respondents proved that they were no longer indebted to the appellant and entitled to a return of their title documents used as collateral to secure the facility. This issue is captured in the respondents’ issues (2) and (3). The contention of the respondents was that its outstanding indebtedness to the appellant was limited by them to N5,651,788.56k as against N8,106,824 hitherto claimed to be outstanding by the appellant on the facility. This lower amount was founded on the report of Messrs. Sky Inspection Nigeria LTD engaged by the respondents to investigate their account with the appellant bank. This report was Exhibit E before the trial Court. The Court also found that the appellant by its letter, Exhibit F dated 23rd August, 2001 acknowledged N5,651,788.56 as the respondents’ outstanding indebtedness to them. The claim of the plaintiffs/respondents was broken down as follows:
1) Value of the goods imported with the appellant’s facility and carted away by the Appellant: N10,000,000
2) Value of Respondents’ goods financed by Equatorial Trust Bank also carted away from the warehouse by the Appellant: N320,000.
3) N1,000,000 lodged into the Respondents’ account acknowledged by the appellant.
Total = N15,320,000
4) Less the outstanding admitted indebtedness of the respondents to the appellant: N5,651,788.56
= N9,668,211.44

This is the amount the Court adjourned to be due to the Respondents from the appellant. The appellant did not deny that they carted away the goods from the respondents’ warehouse. They did not state what they did with it. If they sold them like the respondents alleged they did not state how much was realized. Neither did they offer any answer to the contention of the respondents that they realized more than the respondents’ outstanding indebtedness, which was why they refused to declare the amount. Their silence is an affirmation of the respondents’ contention that had the appellant realized less than the amount owed them by the respondents they would have sued the respondents for the balance or at worst counter-claimed against them in the Court. I therefore agree with the trial Judge that the respondents effectively proved that the appellant was indebted to them in the claimed amount. I see no justification in this appeal to tamper with the sound judgment of the trial Court. Having rightly found that the respondents were no longer indebted to the appellant, it accords with good reason to hold that the appellant has no business holding on to the title documents of the respondents’ properties given to them as security for a facility that has been repaid. I therefore also resolve this issue in favour of the respondents against the appellant. Having resolved all the issues against the appellant, it follows that this appeal is bereft of merit. It is hereby accordingly dismissed. I assess costs at N400,000 in favour of the respondents.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, P. A. MAHMOUD, J. C. A. and I agree entirely with the reasoning contained therein as well as the conclusion which I adopt as mine. I also dismiss this appeal and abide by the order as to costs made by MAHMOUD, JCA in the leading judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions reached in dismissing the appeal as unmeritorious. I abide by the consequential orders made thereto.