Fhomo Nigeria Limited V. Zenith Bank PLC (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Lagos State High Court, sitting in Lagos delivered on the 19th day of September, 2014 by HON. JUSTICE OPEYEMI O. OKE wherein judgment was entered for the Respondent. Dissatisfied with the judgment, the Appellant filed a Notice of Appeal dated 10/11/14 and filed on the same day setting out 10 grounds of appeal and seeking the following reliefs:

i. An order setting aside whole judgment with the order of cost and dismissing the respondent’s claim.

ii. An order giving judgment on the counter claim.

The brief facts relevant to this appeal are that the Appellant applied and enjoyed two facilities to fund a construction project and when it defaulted in making payments, the Respondent took out a writ of summons claiming the outstanding amount and interest accrued thereon.

The trial Court entered judgment as per the claim and aggrieved with the said judgment the appellant appealed. Parties filed and exchanged briefs, which were adopted at the hearing of the appeal. The Appellant’s Brief dated 27th March, 2015 filed on the 30th March,

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2015 setting out 6 issues for determination namely:

a. Whether from the state of the pleadings and the evidence before him the learned trial judge was right when he held that the Respondent discharged the burden of proof placed on it to entitle her to judgment and accordingly gave judgment to the respondent in the sum claimed. This relates to ground 1 of the grounds of appeal.

b. Whether from the state of the pleadings and evidence before him, the learned trial judge was right, and indeed did not act without jurisdiction, when he gave judgment to the Respondent for the sum of N113,427,942.49 based on his interpretation of the documentary evidence and a finding of accumulated interest on the credit facilities…. Having regard to the constitution of the claim before the Court. This issue relates to grounds 2, 6, 8 & 9 grounds of appeal.

c. Whether the learned trial judge showed appreciation of, and did not misdirect himself, on the facts when he relied on the inadmissible evidence and unreliable hearsay evidence of CW1 in Exhibit A-A1 against the appellant’s direct and more credible evidence of DW1 to hold, based on Exhibit C7D, that “The

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transaction between the parties was a valid contract which each party had option of agreeing to the terms of the contract or even make a counter offer” and that the respondent played their part in the contract by providing the funds as testified by the CW1 but the defendant defaulted in paying their debts as agreed by the contract between them’. This relates to ground three of the grounds of appeal.

d. Whether the learned trial judge was right when he rejected the appellant’s plead of non est factum and held that the appellant obtained funds made available after fulfilling the terms and cannot complain but is bound by the Exhibits C & D. This relates to grounds 4 & 5 of the grounds of appeal.