Adiatu Ladunni & Anor. V. Wema Bank Limited & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment)

By an amended writ of summons dated 30th October, 1986, the appellants, who were the plaintiffs in the lower court, had sued the Respondents herein as Defendants for the following reliefs:

“(i) The plaintiffs claim from the defendants on account of what if anything is due from the Plaintiffs to the 1stdefendant under and by virtue of the charges created on, and registered in the charges Register against title No. L07060.

(ii) An order that the plaintiffs may be at liberty to redeem the property comprised in the said title No. L07060.

(iii) A permanent injunction restraining the defendants from selling the properties comprised in the said title No. L07060 unless the plaintiffs fail to pay whatever is found due if any and within the stipulated time.”

The facts forming the basis of the appellants’ claim and the reliefs sought are contained at pages 81 to 82 of the record. The facts are that the 2nd Appellant at the material time was a customer of the 1st Respondent Bank and in consideration of various advances totaling N130,000.00 (One Hundred and Thirty Thousand Naira) made by the 1st Respondent to the 2nd Appellant, the said loans and advances were secured by the property comprised in title No. L07060.

The appellants further allege that despite not having kept proper and up to date accounts nor furnished a comprehensive statement of account to the appellant, who claimed to have paid back various sums borrowed, it was expedient for the 1st Respondent to give the appellants a comprehensive account of all monies paid into and out of 2nd Appellant’s account. The appellants also averred that the 2nd Respondent had advertised the property covered by title No. L07060 for sale and unless restrained by an order of injunction would proceed to effect the sale of the said property.

In their amended statement of defence and counter-claim dated 29th January, 1987 (Records pages 86-88), the 1st Respondent averred that it had always given the appellants comprehensive statements of account of all monies paid into and out of the 2nd Appellant’s account in keeping with normal banking practice and contended that appellants’ action was frivolous, vexatious and is an abuse of the court process and that same should be dismissed.

In their counter-claim, the Respondents alleged that between 1973 and 1980, the appellants took loans and advances amounting to N250,000.00 which were secured by mortgages and charges registered over five different properties belonging to the 1st Appellant.

When the loans fell due for repayment and the Appellants failed and/or neglected to liquidate the outstanding amount, the 1st Respondent sold one of the 1st Appellant’s properties at 3, Folashade Close, Surulere, Lagos and that in spite of the said sale, a sum of N2,444,928.69 was still outstanding as at June 1986. The Respondents thereupon counter-claimed for that amount plus interest.

In their Reply to Statement of Defence and defence to counterclaim dated 19th June, 1986 (Records pages 76-77), the Appellants alleged that each loan taken from the 1st Defendant was a separate transaction and that the property sold was sold at an undervalue. In their defence to counter-claim, they denied being indebted to the 1st Respondent in the amount claimed and asked that the counter-claim be dismissed.

Before the amendment of the parties’ pleadings, the court had in its Ruling delivered on 23rd April, 1986 granted the Appellants’ Motion on Notice for an order of interlocutory injunction restraining the respondents from selling the 1st appellant’s property situate at 8/10 Bridge Street, Idumota, Lagos covered by title No. L07060.

The case was fixed for trial on 17th and 24th September, 1987.

However on, 16th September, 1987, the Appellants filed a motion on notice praying that the respondents’ counter-claim be tried independently or alternatively stayed until after the trial of the Appellant’s claim (Records pages 90-93 is evident.) The same day the Appellants also filed a summons wherein they sought for an order that an account of what, if anything, is due from the 2nd plaintiff to the 1st defendant under and by virtue of the charges created on the registered in the charges Register against title No. L07060 be filed; and also an account and inquiry whether any and what sums ought to be allowed the 2nd plaintiff, and also foe inquiries and necessary directions per the (records pages 94-110). The prayers sought in the summons were granted on 30th November, 1987 (Records pages 117-118), and in complying therewith, the 1st Respondent on 13th June, 1988 filed an affidavit verifying account to which was exhibited a copy of the 2nd appellants’ account (Records pages119-134). After being served with the affidavit verifying account to which was exhibited the account as aforesaid, by another motion on notice dated 25th October, 1988, the appellants sought to strike out the affidavit verifying account and the account filed by the Respondents, but the said motion was itself struck out on 25th May, 1989 after several adjournments.