Bank of the North Ltd V. Alhaji Yahaya Bamidele (2005)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.C.A.

By an amended statement of claim dated the 27th day of November, the respondent as Plaintiff claimed against the appellant as defendant before the Suleja High Court 1 Niger State: Coram Oyewo, J. the following reliefs:

“1. A declaration that the failure of the 1st defendant to release the last installment of N28,333.33 for the completion of Bauchi house of the Plaintiff, as agreed frustrated the realization of the object of the housing loan contract.

2. An Order compelling the 1st defendant to separate the Plaintiff’s Suleja Branch loans account 200779 and current account 500148 from the Zaria Branch’s loan account No. 80005/8405 and current account No. 502438 and ascertain the balance on each.
3. An Order compelling the 1st defendant to produce a comprehensive statement of Account of each account run by the Plaintiff with its branches.
4. A declaration that all the interest charges on the plaintiffs loan Account on Bauchi home is unconscionable, unreasonable and unlawful and should therefore be waived.
5. An order compelling the 1st defendant to execute deed of release on plaintiff’s property covered by Certificate of Occupancy No. NGS 1684 for failure of consideration for the deed of mortgage.

Plaintiff also claimed the sum of N500,000.00 from the 1st defendant for breach of contract of the Bauchi Housing Loan.

The appellant as 1st defendant filed his statement of defence and a counter-claim for which the plaintiff filed a reply. The matter then proceeded to trial. The respondent testified as PW1 before his crass-examination; however, the appellant filed a motion on notice on the 20/10/2003, praying for an order striking out the suit for want of jurisdiction, as the statement of claim has not disclosed any cause of action. The application was moved on the 15/1/2004 and in considered ruling delivered on the 26/2/2004, the application was refused and struck out.

The defendant/appellant being dissatisfied has now appealed to this court on three grounds of appeal. From these grounds the appellant identified these issues in his brief, which was deemed filed by an order of the court made on 16/9/04:

“(a) In determining whether a Statement of Claim discloses a reasonable cause of action, is it solely the contents of the said statement of claim or some other extraneous evidence (as held by Oyewo. J) that will resolve the issue?

(b) Whether in the circumstances of this matter, it can be said that the plaintiff’s statement of claim discloses a reasonable cause of action?

(c) Whether the claim of N500,000 as damages can be dealt with by the trial court independent of the other claim thereby conferring the court with jurisdiction when the claim for damages is inextricably linked to or ancillary to the other reliefs.”

The respondent in his brief of argument filed within time on 14/10/04 raised a preliminary objection on the grounds of appeal and in the alternative that the preliminary objection is overruled raised these issues for the determination of the appeal:

‘(1) Whether the respondent pleadings disclose cause of action.

(2) Whether the appellant’s motion to strike out the suit for non-disclosure of cause of action filed at the verge of the closure of the respondent’s case is not abuse of court processes considering all the circumstances of the case.”

The appellant filed no reply to the respondent’s brief and on the day the appeal was argued the parties adopted and relied on their briefs of argument, The respondent further argued the preliminary objection and submitted that as there was no reply to the preliminary objection raised the court should uphold same and dismiss the appeal in its entirety.

I will start with the preliminary objection first and later consider the main appeal if the preliminary objection lacks merit.