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  • Resurrection Power Invest. Ltd v. U.B.N. Plc
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  • 2016-12-16
  • CA/E/193/2011
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Resurrection Power Invest. Ltd v. U.B.N. Plc

RESURRECTION POWER INVESTMENT LTD
V
UNION BANK OF NIGERIA PLC
COURT OF APPEAL
(ENUGU DIVISION)


IGNATIUS IGWE AGUBE JCA (Presided)
JOSEPH TINE TUR JCA
M. OMODERE BOLAJI-YUSUFF JCA (Read the Lead Judgment)

CA/E/193/2011
TUESDAY, 16 DECEMBER 2016

BANKING LAW - Bank guarantee - Definition of
BANKING LAW - Irrevocable bank guarantee - Bank obligations in respect of - Performance of - Exception thereto
BANKING LAW - Irrevocable documents of credit - Where confirmed - Development of in international trade - Rationale for
BANKING LAW - Irrevocable guarantee - Bank’s refusal to honour obligations under - Nature of fraud capable of justifying
COMPANY LAW - Suit - Authority of company to sue - Objector who challenges - Burden on
COMPANY LAW - Winding up - Order of - Prevention of - Nature of dispute over debt capable of
COMPANY LAW - Winding up of company - Conditions determining - Section 408 of Companies and Allied Matters Act construed
COMPANY LAW - Winding up of company - Petition for - Need to specifically plead and strictly prove provisions of
sections 407, 408 and 409 of CAMA thereon
CONTRACT - Contract document - Source of terms and conditions of contract
CONTRACT - Interpretation of documents - Principles guiding
CONTRACT - Transactions - Importance of truth in
CRIMINAL LAW AND PROCEDURE - ‘Fraud’ - Effect of on proceedings of court
DOCUMENTS - Interpretation of documents - Principles guiding
EVIDENCE - Admitted facts - Needlessness of proving
EVIDENCE - Fraud in civil matters - Standard of proof required for
JURISDICTION - Issue of - General principle of propriety of raising at any stage of proceedings or on appeal -
Exception thereto

PRACTICE AND PROCEDURE - Fraud in civil matters - Particulars of - Need to strictly plead and prove
PRACTICE AND PROCEDURE - Processes filed before court - Nature of as determining party’s case
STATUTE - Companies and Allied Matters Act, section 408 - Winding up of company - Conditions determining
WORDS AND PHRASES - ‘Bank guarantee’ - Definition of
WORDS AND PHRASES - ‘Fraud’ - Effect of on proceedings of court
WORDS AND PHRASES - Bonds/performance bonds - Definition of

Issues:
1. Whether given the fact that fraud was put in issue by the appellant, the trial court was right when it held
that performance bond was payable on demand and that every other step taken by the respondent to broker
peace including issuance of exhibit U, was to keep business relation going.
2. Whether the trial court was right when it held that by exhibit U, the respondent was trying to get concession for the appellant.
3. Whether having regard to the depositions in the affidavit, counter-affidavit and further-affidavit, the alleged debt is not disputed.
4. Whether the learned trial judge was right when he discountenanced suit No. E/56/2010 after parties had joined issues on it.
5. Whether the Federal High Court had the jurisdiction to completely adjudicate of the petition before it and deliver the judgment now appealed against.

Facts:
The appellant entered into an agreement for sale and delivery of equipment with TRISUN International Trading Company
Limited in China. The appellant applied to the respondent and was granted an overdraft facility which was converted into an
irrevocable bank guarantee in favour of TRISUN. The goods on arrival were found to be substandard. The appellant wrote
TRISUN and the respondent alleging a breach of sale contract by TRISUN.
The respondent when approached by TRISUN for payment, advised the company to abide by the terms of the agreement. The
respondent however, decided unilaterally to pay TRISUN. The respondent converted the facility to a loan. The appellant refused
to pay up the loan. The respondent petitoned the Federal High Court for the appellant company to be wound up due to its inability
to pay its debt to it. The appellant opposed the petition. The trial court after hearing parties, found for the respondent and ordered
the appellant be wound up.
Dissatisfied, the appellant appealed to the Court of Appeal.